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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


1/  /  ly-i^  "  \ 


/ 


TREATISE 


LAW    OF    E  VI 


riFTII    AMEUIC/N,     FKOM    THE    SEVENTH    AKD    ErOIlTK    LOKDOn    tTlTlOIV- 


BY  S.  MARCH  PHILLIPPS,  ESQ. 

BARRISTER    AT    LAW. 


IN    TWO    VOLUMES. 
WITH  NOTES  TO  THE  FIRST  VOLUME. 

BY  ESEK  COWEN, 

one  of  the  judges  of  the  supreme  court  ot  the  state  of  j7ew-v0rk  j 

assi;ted 

BY  NICHOLAS  HILL,  Jr. 

OOUN.-ELLOK    AT    LAW, 

VOL.    I. 

SECOND      EDITION. 


NEW-YORK  : 
PUBLISHED     BY    GOULD,     BANKS    &     (JO. 

LAW    EOOKSELLEKS,    NO.    144,    NASSAU    STREET. 

AND    BY    WJJ.    AND    A.    GOULD    &    CO. 

.NO.     lOJ,    STATE    STREET,    ALBANY. 

1843. 


\ 

\1    I 


Entered  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  and  thirty-nine, 

BY    GOULD,    BANKS    &    CO., 

in  the  Office  of  the  Clerk  of  the  Southern  District  of  New-York. 


3^ -si 


-r..:. 


MRRRIAM    AND    COOKE,   PRIKTEBS, 
WFST    BWOOKFIEI.D,    MASS. 


i 


ADVERTISEMENT 


TO 


THE    SEVENTH    EDITION. 


The  last  Edition  of  the  Treatise  on  Evidence  having  been 
long  out  of  print,  a  Seventh  is  now  submitted  to  the  Profes- 
sion and  to  the  Public,  carefully  revised,  and  very  materially 
enlarged. 

In  preparing  the  present  Edition,  I  have  been  fortunate  in 
obtaining  the  valuable  assistance  of  my  friend,  Mr.  Amos.  On 
quitting  the  practice  of  the  bar,  for  other  occupations  of  a 
different  kind,  I  found  it  would  no  longer  be  in  my  power  to 
give  that  unremitting  attention  (o  professional  studies,  without 
which  I  could  not  hope  to  carry  on  such  a  work  with  anv 
prospect  of  success.  I  was,  therefore,  glad  to  avail  myself 
of  the  aid  of  a  friend,  whose  talents  and  professional  know- 
ledge are  well  known  and  highly  appreciated. 

Of  this  Edition,  I  have  revised  the  whole  of  the  First  Vol- 
ume, inserting  the  cases  recently  decided,  and  making  many 
alterations  which  appeared  to  be  improvements.  The  section 
in  the  Second  Volume,  which  treats  of  Actions  against  Com- 
missioners of  Sewers,  is  mine  :  and,  I  believe,  it  is  the  first 
which  has  been  written  on  that  subject. 


IV  ADVERTISKMENT. 

The  Other  additions  to  the  Second  Volume  have  been 
made  entirely  by  my  co^idjutor.  All  the  important  chapters 
arc  much  enlarged.  Many  |)irt3  are  entirely  new  :  among 
which  may  be  mentioned,  the  chapter  on  actions  by  Com- 
missioners of  Bankrupts  ;  several  heads  in  the  chapter  on 
Policies  of  Insurance  ;  and  the  articles  on  Carriers,  on  the 
Special  Pleas  in  Assumpsit  and  Actions  of  Trespass,  on  the 
Pleas  in  Abatement,  on  the  Plea  of  Tender,  and  the  Plea  of 
the  Statute  of  Limitations.  The  chapters  on  Bills  of  Ex- 
change, on  the  Statute  of  Frauds,  and  the  section  on  the 
Action  of  Trespass  against  the  Person,  have  been  recast,  and 
novv'  appear  in  a  more  convenient  and  better  form.  The 
new  notes  which  have  been  introduced  in  the  Second  Vol- 
ume, are  the  result  of  extensive  research,  and  will  be  found 
of  great  value. (a) 

Whitehall,  January  S,   1829. 

(a)  For  th3  preface  by  the  American  Editors  of  the  first  volume,  and  a  list 
of  the  books   consulted  by  them,  seo  the  first  volume  of  the  Notes. 


C  O  N  T  E  N  T  S 


OF 


BOOK     r  HE     FIRS  T 


PART  THE  FIRST. 

C  II  A  P    I . 

Page 

Of  the  Attendance  of  Witnesses        -         -           -  2 

Attendance  in  Civil  Cases           -            -             -  2 

Subpoena  ad  testijicandum             -              -           -  2 

Subpoena  duces  tecum           -           -            -           -  3 

Service  of  Subpoena             -         -             .            .  4 

Privilege  from  Arrest     -         .          .           -         -  4 

Habeas  Corpus  ad  testificandum             -               -  5 

Payment  of  Expenses         -         -               .           .  Q 

Remedies  for  Non-attendance           ...  7 

Attendance  in  Criminal  Cases         -         -           -  8 

Process  for  securing  such  Attendance         -         -  8 

Compensation  in  Criminal  Cases             •             -  9 

Compensation  in  Cases  of  3Iisdemcanors               -  12 
Attendance  before  Comr,ii$sioners  of  Bankrupt-) 
Justices  of  the  Peace,  Courts-martial,  and 

Commissioners  of  Inclosure         -         -           13,  14 

Witness  abro^ — how  to  proceed           -             -  14 
Material   Witness  absent — Motion  ffir  putting 

of  the    Trig.1 16 


VI 


CONTENTS. 


CHAP.  II. 

Page 

Of  the  Incompetency  of  Witnesses  from  Want  of 

Understanding  -  -         -  -         -        17 

General  Rule  as  to  Credibility  and  Competency     •     17 
The  several  Grounds  of  Incompetency         -  -     18 

Idiots — Lunatics         -         -         -         -         -         -13 

Children 19 

Declarations  of  Children         -         -         -  -     19 

Confirmatory  Evidence  -  -  -  -     20 


CHAP.  HI. 

Of  Incompetency  from  Defect    of  Religious  Prin- 
ciple            _             .             -               .             .  20 

Principle  of  the  Rule         -         -         -         -         -  21 

Atheists — Infidels         - 21 

Form  of  Sivearing             -             -            -             -  22 

Examination  previous  to  Swearing         -         -       -  23 

Examination  as  to  Religious  Opinions         -         -  24 

Quakers.     (Vide  st.  9  6^.  4,  c.  32,  in  Appendix)  24 

Excommunication             -               -             -             -  26 


CHAP.  IV. 
Of  Incompetency  of  Witnesses  from  Infamy  -     27 

Infamia  juris — Infamiafacti  -  -  -     27 


Sect.    I.    What   Offences   incapacitate  5    and   of 

the  Mode  of  restoring  Competency     28 

What  Crimes  disqualify         -  -  -         -      28 


CONTENTS. 

Page 

Treason,  Felony,  Crimen  falsi,   Conspiracy,  Sfc.  28 

Infamous  Judgment — Infamous  Punishment  -  30 

Proof  of  Judgment         -           -           -           -  -  30 

Reversal  of  Judgment         -          -         -         -  -  31 

Competency ,  how  restored         -         -         -         -  -  31 

1.  Purgation              -               -               -  -  31 

2.  Benrjii  of  Clergy  ...  .32 

Proof  of  Clergy            -            -            -  -  32 

3.  Effect  of  Suffering  Punishment         -  -  33 

Benrfii  of  Clergy  abolished              -  -  34 

4.  Pardon             -             -             ...  35 

Proof  of  Pardon                  -             .  -  35 


vu 


Sect.  II.  Of  the  Admissibility  of  Accomplices  SiS 

General  Rule             -             .             -,             -  -  36 

Approvement          ......  -  37 

Modern  Practice         -         -         -         .          .  -  38 

Implied  Compact  tcith  Accomplices         -         -  -  38 

Rule  for  admitting  Accomplices            -           -  -  39 

Confirmatory  Evidence         ...          -  -  41 

Associates,  Informers         -          -           -           -  -  42 

Party  invalidating  an  Instrument               -  -  43 


CHAP.  V. 

Of  the  incompetency  of  Witnesses  from  Interest     4-5 

Principle  of  the    Rule         -  -         -  -  -     45 

Sect.  I.  Of  the  Nature    of   the  interest  which 

disqualifies  46 


General  Rule -  -  46 

What  is  not  such  an  Interest  as  disqiudifiei  •  47 

Witness  in  same  Situation  as  Party         -  -  47 

Examples  of  competent  Witnesses  -  -  48 

Insurer  in  Policy — Vendor  of  Estate — 


CONTENTS. 

Page 
Dormant  Partner — Subtenant — Rever- 
sioner— Captain  of  Ship — Party  injured 
in  Prosecution  for  Perjury — Borrower  in 
case  of  Usury — Persons  liable  to  Infor- 
mation of   Action — Bond  Security  for 

Administrator Executor,    Trustee 

Person    believing     himself    interested — 
Honorary  Obligation       -        -        -     48 — 54 
General  Rule  as  to  interested  Witness  -     55 

T.   Interest,  where  the  Verdict  would   be  Evidence 

for  or  against  the  Witness  •  •  -     56 

Examples  of  incompetent  Witnesses         -       -     56 
Servant Broker — Lan  dlord —  Com- 
moners and  Persons    Claiming  the  same 
Right,  under  a  Custom,  or  Usage — Ten- 
ant   in    Possession — Persons    liable   to 
Costs,  as  bail — Sheriff's    Officer — Pro- 
chein  Amy — Partners — Drawer  of  Ac- 
commodation Bill — Agent — Co-obligor     56 — 6i 
TI.   Interest,  though  Verdict  cannot  be  used       -        -     63 
Residuary     Legatee —  Underwriters —  Wit- 
ness  discharging   his    own    Debt — Benefit 
or  Loss,  depending  on  the  Event — Devisee 
—Heir — Remainder-man —  Wi  tness    prov- 
ing himself  Tenant  in  Ejectment  -       63 — 65 
Degree  of  Interest           -           -           -           -  -     65 
Interest  on  both  Sides         -         -           -           -         -     66 
Examples — Captain   of  Ship — Priority 
of  Demise — Acceptor,  Payee,  Joint  ma- 
ker— Partner           -         -           -         -     66 — 67 


Sect.  11  Of  the  Rule  on  the  Subject  of  Inter- 
est considered  with  reference  to  tfie 
Parties  in  the  cuh         -         -     -         6.) 


Party  to    the  suit  incompetent  -  -  -  69 

Exceptions  to  the  General  Rule         -  -  -  69 

Party  not  compellable  to  give  Evidence  -  -  72 

Co-Plaintiff  Witness  against  another  -  -  72 


CONTENTS.  ix 

Page 

Co-defendant  when  competent  for  another  -  -  -    73 

Co-defendant  pleading  Bankruptcy          -  -  -  -    74 

Co-defendant  submitting  and  fined           -  -  -  -     74 

Defendant  suffering  Judgment  by  Default  -  -  74,  7o 

Witness  made  Defendant  hy  Mistake      -  -  -  -     76 


Sect.  IIL  Of  the  Rule  on  the  Subject  of  Interest, 
considered  with  reference  to  Husband  or  Wife 
of  the  Party.  76 


General  Rule             .             .             .             .  7(j 

Their  incompetency  against  each  other             -  -          76 

Their  Incompetency  for  each  other             -  -             -  81 

Their  Declarations  or  Letters           -             -  -      81,  82 

Extent  of  the  Rule             -             -             -  -           -  82 

Exceptions  to  (he  General  Rule              -  -               -  83 

1.  In  Prosecution  on  Stat.  3  II.  7.             -  -           -  84 

2.  In  Prosecution  for  Bigamy             -  -               -  84 

3.  In  case  of  off'ence  against  the  person  -              -  84 

4.  Where  the  Wife  is  Agent  for  the  Party  -           -  85 

5.  Examination  of  Bankrupt's  Wife         -  -         -  86 

6.  On  cippeaLagainst  Order  of  Bastardy  -         -  86 

7.  In  action  between  third  Persons             -  -         -  87 
Evidence  of  Woman  cohabiting  as  Wife      -  -         -  88 

Sect.  IV.  Of  the  Effect  of  Admissions  by  a  Party  to 

the    Suit,    or    by  his   Agent,  against  the 

Party's  Interest             -  89 

Admissions  of  a  Party  to  the  Suit          -          -  -         -     89 

Admission  of  persons  nominally  parties           -  -         -     90 

Admission  by  guardian  of  the  party         -         -  -       -     89 

Admission  by  partner  of  the  party         -         -  -           -     92 

Declarations  by  Co-trespassers         -         -         -  -       -     93 

Acts  and  declarations  of  Co-conspirator         -  -          -     94 

Statement  by  Agent  of  the  party         -           -  -         -     99 

Proof  of  Agency        ...  ....  103 

Vol.  I.  B 


CONTENTS. 

Page 
Admission  by  Attorney  oj  party         -         -         -  -  105 

Admission  by   Under  Sheriff        •         -         -         -  -  106 

Admission  of   Debt  -  -  -  -  -  107 

Admission  by  Sheriff's   Officer     -         -         -         -  -    106 

Effect  of  Admission  -  -  -         -         -         -107 

Notice  to  quit  not  objected  to — its  Effect         -         -         -  108 
Offer  of  Terms,  byway  of  Compromise         -         -         -   108 

Limitation  of  Bule 109 

Whole  of  admission  taken  together  -         -         -         -  110 

Sect.  v.  Of  the  Admissibility  of  the  Confession  of 

a  Prisoner  against  himself       -         -         -   110 

Voluntary  Confession     -       -          -  -  -  -  -llO 

General  Rule        -         -         -         -  -  -  -  -110 

Parol  Eiidcnce  of  Confession         -  -  -  -  -  113 

Mode  of  taking  an  Examination  •  -  -  -   113 

Signing  of  Examination        -         -  -  -  -  -114 

Confession  not  evidence  against  others  -  -  "  -  115 

Discoveries  in  consequence  of  Confession  -  -  -  116 

Confessions  171  case  of  Treason         -  -  -  -  -117 

Principle    of    the  Rule         -         -  -  -  -  -118 

ProoJ  of  Confession         -         -         -         -  -  --119 


Sect.  VI.   Of  the  Competency  of  the  party  injured 

in  Criminal    Prosecutions        -         -         119 


General  Rule  and  Examples         -         -  -         -         -   1 19 

Exception  in  case  of  forgery         -         -  -         -         -   121 

Prosecutor  in  such  Case,  when  competent  ...   122 

Reason  of  the  Exception         -         -         -  -         -       -  123 

Sect.   VII.  Of  certain  Exceptions    to  the  general 

Rule  on  the  Subject  of  Interest         -         -      125 

Informers         -         - 125 

Inhabitants  of  Counties,  Parishes,  Sfc.         -         -         .  126 


CONTENTS. 

Persons  entitled  to  Rewards 
Agents,  Servants,  J^c.     - 


Page 
129 
129 


XI 


Sect.   VIII.     Of  the  Means   by  which  the  Com- 
petency  of  an   interested    witness 

may  be  restored.    -           -  -     IS  I 

Objection  lohcn,  and  how,  taken    -             -  -  131 

Examination  on  voire  dire  as  to  Writings  -  132 

Objection  tclicn,  and  how,  removed             -  132,  133 

Competency  restored  by  Release    -             -  -  133 

by  Payment              -  -  133 

General  Release  -              -             -             -  -  134 

Release  by  Guardian        -              -              -  -  134 

Release  by  Co-obligee        -             -             -  -  134 

Release  to  Co-obligor        -             -             -  -  134 

Release  on  Trial  for  Forgery       -             -  -   135 

Release  by  Residuary  Legatee     -              -  -  135 

Member  of  Corporation,  when  competent    -  -  136 

Release,  when  unnecessary             -             -  -   136 

1.  Where  Witness  offers  to  release    -  -  136 

2.  Where  Interest  created  fraudulently  -  137 

3.  Where  Interest  equal  on  loth  Sides  -  140 


CHAP.  VI. 


Of  the  Admissibility  of  Counsel,  or  Solicitor  -  140 

General  Rule       -             -             -             -  -  140 

Waiver  of  Privilege         .             .             .  .  141 

Production  of  Deed  or  other  Writing       -  -  141 

Rule  in  Prosecutions         .             _             -  -  142 

Extent  of  the  Rule            -             -             -  -  143 

Interpreter — Agent            -             -             -  -  144 

Confidential  Cominunications         -             -  -  144 

Oath  of  Office      -             -             -             -  -  145 

What  facts  mail  be  proved  by  Counsel  or  SoUcilor  146 


CONTENTS. 


CHAP.    VII 


Page 
or  certain  General  Rules  of  Evidence  -         -  148 


Sect.  I.     Of  the  Number  of  Witnesses   for  the 

Proof  of  a  Fact         -  -  -  150 

The  General  Rule            .  -             -             .  150 

In  Trial  for  Perjury        -  -              -              -   151 

In  Trial  for  Treason       -  •             •             -  152 

Rule  in  Courts  of  Equity  ...   154 

Rule  in  Ecclesiastical  Courts  -         -             -  155 

Sect.  II.     Of  the  Nature  of  Presumptive  Evi- 
dence. _  _  _  -  155 

Circumstantial  Evidence     -              -  -  155,  156 

Presumption  of  Laio — of  Fact         -  -  -  157 

Prcs7i7nption  of  Legitimacy               -  -  -  158 

Presumption  of  Payment         -         -  -  -  159 

Presumption  of  Release  of  Quit-rent  -  -  160 

Presumptive  Evidence  of  Property  -  -  -   160 

Presumptive  Evidence  oj  Grants          .  .  -  161 

Presumptive  Evidence  of  Endowments  -  -  162 

Adverse  Possession  for  Twenty    Years  -  -   163 

Circumstantial  Evidence  in  Criminal  Cases  -  166 

Discrepancy  in  Testimony  oJ   Witnesses  -  -   167 

Sect.   ill.     Evidence  is    to   be    confined  to  the 

Points  in  Issue  .  .169 

Relevancy  of  Proof  ....  169 

Admissions  on  Record,  Ejfeet  of  •             -  -   170 

Proof  of  other  Transactions          ■             -  -  171 

Proof  of  Customs  in  other  Manors^   6fc.    -  -  173 

Evidence  of  Character          •         -             -  -  176 

Rule  in  Criminal  Cases — Examples           -  -  178 

Proof  of  other  Acts,  as  Evidence  of  Intention  -  179 


CONTENTS.  xiii 

.  ^^^^ 
Acts  and  declarations  of  Prisoner,  when  Evidence  for  him  181 

Judgment  by  Default — Us  Effect  -  -  -  186 

Payment  of  Money  into  Court     -  -  -  -   187 

Proof  of  Payment  into  Court  -  -  -  189 

Bill  of  Particulars— Its  Effect  -  -  -  189 

Error  in  Particular      -             »  -  -  -  191 

Delivery  oj  Particular              .  _             .  -   193 

Proof  of  Particular     -             -  :  .  -  193 


Sect.     IV.    The    Affirmative  of    the    issue    is  to 

be  proved   -  -  -  -   194 


General  Rule  and  Examples        -             -  i-  -   194 

Charge  of  Breach  of  Duty         -             -  -  -  195 

Presumption  of  Law       -             -             -  -  -  197 

Isstie  on  Death  of  a  Person         -             -  -  -  197 

Fact  peculiarly  loithin  Party's  Knowledge  -  -  198 


Sect.  V.  The  substance  only   of  the  Issue  need  be 

proved  -  '  -  -  -  200 

Examples  in  Civil  Cases  .  .  -  i  200 

Examples  in  Criminal  Cases         ...  -  202 

Immaterial  Averment         -  -  -  -  -  204 

Materialty  of  Averrnent  -----  205 
When  Averments  may  he  struck  out         -  -  -  206 

Variance  in  Proof  of  Contract  -  -  -  -  207 

Variance  in  Proof  of  Prescription         -  -  -  210 

Variance  in  Proof  of  Deed         -  -  -  -  211 

Variance  in  Proof  of  Record     -  -  -  -  212 

Variance  in  Time  -----  214 

Variance  in  Place  -  -  -  -  -215 


Sect.  VI.  The    best  Evidence  is  to  be   produced 

which  the  Nature  of  the  Case  admits      217 

Meaning  of  f^"  Rn/r.  n^'d  Examples     -  -  -  218 

« 


XIV 


CONTENTS. 


Page 
Proof  of  Insurance — Of  registered   Deed — Of 
Discharge   of  Insolvent — Of  Deed — Of  written 
Memorandum — Of  Terms  of  Tenancy — Of  Reso- 
lutions at  a  Meeting  -  -  218—221 
Rule  considered,  in  provinix  and  disproving  of  Hand- 
writing        ....             -  -  224 
Cases  in  which  the  best  Proof  is  dispensed  with  -  226 
].   Ejilri/  in  Public  Books  -              -              -             -  226 
2    Proof  of  being  a  Public   Officer             -             -  226 
3.   Proof  dispensed  with  by  Party's  Admission         -  226 


Sect.   V'II.   Hearsa)  is  not  Evidence 


229 


General  rule  as  to  Hearsay 

Testimony  on  a  former  Trial 

Hearsay,  part  of  res  gesta 

Principle  of  the  Rule 

Exceptions  to  the  Rule 

Dying  Declarations 

Hearsay  on  Question  of  Pedigree  - 

Declarations  post  litem  motam 

Hearsay  as  to  Public  rights 

Hearsay  as  to  Boundaries,  Customs,  S^c. 

Hearsay  as  to  private  Rights 

Old  Leases,  Rent  Rolls,  S^c. 

Surveys  of  Manors  - 

Declaration  against  Interest 

Rector's  and  Vicar's  Books 

Tradesman' s  Books 


229 
230 
231 
234 
234 
235 
238 
241 
248 
249 
251 
252 
254 
255 
260 
263 


CHAP.  VIII. 


Of  the  Examination  of  Witnesses 


-  267 


Examination  as  to  Interest 
Examination  in  Chief   • 


267 
268 


CONTENTS. 

Page 
Leading  Questions  ....  268 

Leading  in  Examination  in  Chief        -  -  -  269 

Cross-Examination  .....  272 

Leading  in  Cross-Examination  ...  275 

Privilege  of  Witness  in  not  ansxvering    .  -  -  276 

1.  When  the  Anstvcr  might  subject  to  Penalties     -  276 

2.  When  it  might  suhject  to  a  Civil  Suit         -         -  ^11 

3.  When  it  might  subject  to  Forfeiture  -  -  278 

4.  When  it  might  degrade  Witnesses  Character       -  278 

1 .  Whether  he  is  compellable  to  answer      -         -  280 

2.  Whether  such  Questions  are  legal    -  -  282 
Privileged    Communications         ....  284 

Rule  as  to  Informers,    ^c.  ...  286 

Rule  as  to  Official  Information        -  -  .  287 

Memorandum  to  assist  Witness  -  _  .  289 

Opinion  of  Witness         -----  290 

Credit  of  Witness  hrw  impeached  ■  -  -  291 

Proof  of  General  Character  -  •  -  291 

Proof  of  Contradictory  Statements  -     293 — 306 

Evidence  in  support  of  Character  -  .  .  306 

Party  not  to  discredit  his  own  witness      -  -  -  308 

Proof  of  Bad  Character  -  -  -  -309 


CHAP.  IX. 


i){    Bills    of  Exce|3tions,    and    Demurrers    to  Evi- 
dence -  -  -  31 


Bill  of  Exceptions  -  -  -  -  -  311 

Demurrer  to  Evidence  -  -  -  -  -313 


xvi— XX  CONTENTS. 


PART  THE  SECOND.  ^ 


CHAP.  I. 

**  Page 

Of  Acts  of  Parliament              -  -             -  316 

Records                  -             -  -  -  -  316 

Of  the  Effect  of  Records  -  -  -  316 

Acts  oj  Parliament           -  -  -  -  317 
General  Acts         -----  317 

Preavihle  of  Acts              -  -  -  -  318 

Public  Act,  when  pleaded  -  -  -  319 


CHAP.    II. 

Of    Verdicts    and     Judgments   of    Courts   of   Re- 
cord     ------  320 


Sect.  1.  Of  Verdicts  and  Judgments,  consid- 
ered with  reference  to  the  Parties 
in  the  suit  _         -         -         -  320 


General  Rule        -             -             -             -  -  321 

Effect  of  Judgment  between  same  Parties  -  32 1 

Wlio  the  same  Parties            -             -  -  323 

Who  the  real  Parties             -              -  -  324 

Effect  of  Judgment  between  Privies           -  -  324 

Verdict  not  Evidence  against  a  stranger  -  326 

Verdict  not  Evidence  for  a  Stranger         -  -  326 

Exceptions  to  the  Rule      -             -             -  -  327 

1.  Verdict  as  to  customs,  Tolls,  Sfc.      -  -  327 

2.  Judgment  of  Courts  of  exclusive  Jurisdiction  328 

3.  Judgment  of  Sessions  in  Appeals     -  -  329 

4.  Convictions                .             -             -  -  331 

5.  Judgment,  Evidence  by  way  of  Inducement  -  322 


CONTENTS. 

Page 
Sect.  II,    ^Of  Verdicts  and  Judgments,  consid- 
ered with  reference  to  the  Sub- 
ject matter  of  the  Suit      -         -  33c} 

General  Rule        -  -  -  -  .  333 

Efect  of  former  Judgment  ...  334 

Judgment  in  Ejectment     -  -  -  .  336 


Sect.  III.  Of  the  Admissibility,  in  Civil  Cases, 
of  Verdicts  in  Criminal  Proceed- 
ings         SS^ 

Sentence  in  Ecclesiastical  Court  -  -             .  335 

Record  of  Conviction         -             -  .             .  337 

Coroner's  Inquest               -             -  -             .  337 

Effect  of  Record  of  Conviction         -  -          .  338 

Record  of  Acquittal         -         -    -     -  -         .  340 


GHAP.  III. 

Of  the  Judgment  of  Courts    of  Exclusive  Juris- 
diction -  -  -  _  §40 

Sect.  I.     Of  Sentences  in  Ecclesiastical  Courts    341 

Sentence  on  question  of  Marriage               -  -  341 

Sentence  of  Jactitation  of  Marriage          -  -342 

Probate  of  Wills               -             -             -  -  343 

Letters  of  Administration               -             -  .  343 
Sentence,  how  far  Evidence  in  Criminal  Proceed- 

»«^^                 -                -  -  -  346 

Sentence  impeachable  for  fraud  -  .  346 

Vot.  I.  8 


XXI 


xxii  CONTENTS. 

Page 
Sect.  II.  Of  sentences  in  Courts  of  Admiralty  and 

Foreign  Courts.  _  -  -  SA6 

Sentence  on  Question  of  Prize       -  -  -  346 

Sentence  of  Foreign  Courts  of  Admiralty  .  347 

Efect  of  such  Sentence  -  -  -  348 

Sentence  of  other  Foreign  Courts  -  -  349 

Action  on  Foreign  Judgment         -  .  -  350 

Effect  of  Foreign  Judgment  .  .  .  353 

Sect.  HI.  Of  Judgments  in  rem  in  the  Exchequer 
by  Commissioners  of  Excise,  and  by  Col- 
leges in  the  Universities  -         -     -  354 

Judgment  of  Condemnation  in  Exchequer  -  354 

Judgment  in  personam         .  -  -  -  354 

Judgment  hy  Commissioners  oj  Excise         -  -  355 

Acquittal  in  the  Exchequer  -  .  -  355 

Sentence  of  Deprivation  hy  a  College        -  -  356 

General  Rule,  as  to  limited  Jurisdictions  -  357 

CHAP.  IV. 

Of  certain  other  Judicial  Proceedings         -         -     -  358 

Sect.    1.  Of  Proceedings  in  Chancery  -     -  356 

Decree       ------  358 

Bill 358 

Answer         ------  359 

Depositions  _  -  -  -  -  363 


Sect.  II.  Of  Depositions,  Kxaminations,  Inqui- 
sitions, and  other  Judicial  Proceed- 
ings -  .  -  - 


u 


66 


Depositions  on  Interrogatories      -  -  -  366 

Depositions  in  India         -  -  -  -  367 


CONTENTS. 


XXlll 


Page 
Depositions  before  Justice    of  Peace         -  -  367 

Deposition  in  cases  of  Misdemeanor  -  -  368 

Depositions  before  Coroner  -  -  -  371 

Inquisitions,  by  Coroner,  of  Escheat,  S^c.  -  374 

Examinations  of  Paupers,  Sfc.     -  -  -  376 

Dipositions  in  Ecclesiastical  Courts         -  -  378 

Depositions  before  Commissioners  of  Excise  -  378 

Judgments  of  Inferior  Courts       ...  380 
-Awards     ------  380 

Certificates  -  -  -  -  -  381 

CHAP.  V. 

Of  the  Proof  of  Records   and    Judicial    Proceed- 
ings   -----  383 


Records    -  -  - 

Public  Acts  of  Parliament 
Private  Acts 
Copies  of  Records 
Verdict     -  -  - 

Postea      -  .  - 

Judgment 

fVi-its        -  -  . 

Inquisitions 
Common  recoveries 
Proceedings  in  Chancery 

Decree 

Ansicer 

Depositions 
Judgment  in  House  of  Lords 
Proceedings  in  Inferior  Courts 
Probate  oj   Wills 
Letters  of  Administration 
Foreign  Judgment 
Award     -  -  . 

Foreign  Laws 


-  383 

-  383 

-  383 

-  384 

-  389 

-  389 

-  390 

-  390 

-  392 

-  392 

-  392 

-  392 

-  393 

-  394 

-  396 

-  396 

-  396 

-  398 

-  399 

-  399 

-  401 


xxir  CONTENTS. 

CHAP.  VI. 

Page 
Of  Public  Writings  not  Judicial  -  -     -  403 

Domesday -hook     -----  403 
Surveys  of  Ecclesiastical  Benefices  -  -  404 

Pope  Nicholas's  Taxation  ...  404 

Valor  Beneficiorutn  in  reign  of  Henry  VIII.       -  404 
Survey  in  Time  of  the  Commonwealth       ■  •  405 

Inquisitlones  nonarum        -  -  .  .  405 

Journals  of  Parliament    -  -  -  -  406 

Gazettes   ---...  407 
Parish  Registers  -  -  -  -  408 

Registers  of  Ships  -  -  -  -  411 

Rate-hooks  -  -  -  -  -  413 

Rook  for  Parish  Indentures  -  -  -  413 

Books  of  Public  Offlces  -  -  -  -  413 

Rolls  of  Manor  Courts     -  -  -  -  417 

Terriers  -  -  -  -  -  419 

Herald's  Books    -  -  -  .  -  421 

Pope's  Bull  -  .  .  -  421 

Corporation  Books  -  -  -  .  422 

Histories  ----,.  423 
Proof  of  Entry  in  Public  Books  -  -  424 

CHAP.    VII 

Of  the  Inspection  of  Public  Writings     -         -         -  425 

Records  --....  425 

Copy  of  Indictment     .....  425 
Inspection  of  Depositions         -  -  .  .  427 

Proceedings  of  inferior  Jurisdictions  -  -  -  427 

Parish  Books  and  other  Public  Books  -  -  428 

Rolls  of  Manor  Court     '         -  -  -  .  429 

Corporation  Books        -----  430 
Inspection,  when  not  compelled  ...  432 

Proceeding  for  obtaining  Inspection    -  -  -  433 


CONTENTS.  XXV 

CHAP.    VIIL 

Page 
Of  the  Proof  of  private  Writings  -  -  -^35 

Sect.  1.  C)f  the  Proof  of  Deeds,  Agreements  and 

other  Writings  -  -  -         -  435 

Suhpcena  duces  tecum  ...  436 

Rule  on  Party  to  produce  ...  436 

Notice  to  Parti/  to  produce        ...  439 
Proof  of   Writing    being   in   the    Party's 

Possession  ....  440 

Calling  for  Papers  after  Notice     -  -  441 

Notice  when  dispensed  with  -  -  441 

Deed  in  Court  in  Possession  of  the  other 

Party        -         -  -  -  -  443 

Proof  of  Notice      ....  445 

Proof  of  Deed  produced  under  Notice         -  448 

General  Rule — Exceptions         -  '      •  449 

Secondary  Evidence  of  Writings  .  -  452 

Proof  of  Loss  of  Original  -  -  454 

Wliat  Secondary  Evidence  admitted  -  457 

Of  ancient  Writing  -  _  -  459 

OJ  lost  Deed         -  -  -  -  464 

Copy  of  Enrolment  of  Deed  -  -  461 

ProoJ  of  Execution  by  subscribing  Witness      -  464 
Execution  of  Powers  ...  468 

Proof    of   Execution   by   proving    subscribing 
Witness's  Hand-writing       ...  473 

Proof  of  Execution,  in  absence  of  subscribing 
Witness         .  .  -  -  .  475 

Exceptions  to  the  General  Rule  -  -  477 

1.  Old  Writings       -         -  -  ,477 
Custody  of  Old  Writings           -  -  479 

2.  Deed  produced  under  Rule  of  Court      -  483 

3.  Deed  produced  by  the  other  Party        -  483 
Proof  of  Hand-writing  in  general         -  -  483 

Comparison  of  Hand-writing         -  -  490 


^^vi  CONTENTS 

Page 
Proof  of  ancient  Writings         -  -  .  491 

Evidence  as  to  Genuineness  of  Writing  -  492 

Sect.  II.  Of  the  Proof  of  Wills         -         -    '     -  494 

Form  oj  Wills         -      -  -  -  -  494 

In  case  of  Copyhold  Land         -  -  -  494 

Competency  of  attesting  Witness  -  -  494 

Proof  of  Contents  of  Will         -  -  -496 

Proof  of  Execution  by  subscribing  Witness        -  496 

Signing  of  Testator  -  -  -  497 

Attestation  ....  599 

Presence  of  Testator  ...  500 

Witness  itnpeacJiing  the  Execution    •  -  502 

Proof  of  Old  Wills  .  -  -503 


CHAP.  IX. 

Of   Stamping,    as    a   requisite   of    Written    Instru- 
ments -----  604 

General  Rule  -----  504 
Proof  of  the  Transaction  tcitkout  Writing  -  504 
Foreign  Instrument       .  -  -  -  505 

Denomination  of  Stamp  -  _  _  5O6 

Several  Stamps,  ichcre  necessary  -  -  508 

Alteration  of  Bill  of  Exchange  -  -  511 

Alteration  of  Policy  of  Insurance         -  -  513 

Alteration  to  correct  Mistakes  -  -  -  515 

Unstamped  Instrument ,  when  Evidence  for  col- 
lateral Purposes  -  -  -  -  518 
Writing  lost — Stamp,  when  presumed  -  -  522 
Defect  of  Stamp,  how  cured  -  -  -  523 
Stamp  on  Agreements  -  -  -  -  524 
Exemptions         .             .            -             -             .  526 

1 .  Label  or  3Iemorandum  of  certain  Insurances  526 

2.  Memorandum  or  agreement  for  granting  a 
Lease  of  Land,  Sfc.  •  -  -  ^26 


CONTENTS.  xxvii 

Page 

3.  Memorandum  or  Agreement  for  the  hire  of  a 
Laborer,  Sfc.       -  •  -  -         -  527 

4.  Memorandum,  Letter,  or  Agreement  for  or  re- 
lating to  the  Sale  of  Goods,  Sfc.  -  -  527 

5.  Memorandum  or  Agreement  for  Wages  between 

the  Master  and  Mariners  of  certain  Ships       -  530 

6.  Letters  containing  Agreements  in  respect  of 
any  Merchandise,  or  evidence  of  such  Agree- 
ment, (^'c.         .  -  -  -  .  530 

CHAP.  X. 


Of  the  Admissil)ility  of  Parol  Evidence    to    explain, 

vary,  or  discharge  Written  Instruments    631 

Sect.    I.  Of  the  Admissibility  of  Parol  Evidence 

to  explain  Ambiguities  -       -         >  531 

Latent  Ambiguity  -  -  -  -  531 

Mistake  in  Names  -  -  .  .  532 

Parol  Evidence,  to  give  Efect  to  Wills  -  -  533 

Patent  Ambiguity  -  -  _  .  539 

Uncertainty  in  Devise      -  -  -  .  533 

Omission  of  Name  in  Will  -  -  .  539 

Omission  in  Written  Instruments  -  .  540 

Usage  erplanatory  of  Ancient  Charters  and  Deeds  540 
Evidence  of  the  Situation  or  estate  of  the  Party    543 

Skct.  11.  <  )f  the  Admissibility  of  Parol  Evidence 
to  vary  or  discharge  Written  instru- 
ments -  -  -  _  547 

Wills       -  -  -  -  -  -  548 

Deeds     -----  -  543 


xxviii  CONTENTS. 

Page 
Proof  of  another     Coni deration,    when   ad- 
missible    -----  549 

Proof  of  a  different  Consideration,  in  case  of 

illegal  Transactions  -  ♦  -  551 

Proof  of  Delivery  of  Deed  at   a  different 

time  .  -  .  -  .  553 

Proof  of  Customary  Right,  Sg-c.  not  express- 
ed in  Lease  .  -  -  -  553 
Proof  not  admissable   to  vary    the  time   of 
holding       -----  554 

Policies  of  Insurance       -  -  -  -  554 

Charter-parties     -  -  -  -  -  554 

Promissory  Notes,  Sgc.      -  -  -  -  555 

Contract  for  seaman's  Wages       -  .  -  656 

Usage  of  Merchants,  to  explain  mercantile  Con- 
tracts   -----  -  556 

Agreements  within  Statute  of  Frauds       -  -  559 

^Igreements  not  within  statute  of  Frauds  -  662 

Proof  of  Collateral  Facts  to  show  Intention         -  562 
Discharge  of  Simple  Contract  by  Parol  -  -  563 


Sect.  III.  Of  the  Rule  in  Courts  of  Equity,  re- 
specting the  Admissibility  of  Parol 
Evidence  -  .  -  566 


General  Rule       -----  567 
Rule  with  Respect  to  the  Defendant  on  a  Bill  for 

Specif  c  Performance      -  -  -  -  568 

Rule  with  respect  to  the  Plaintif'    -  •  -  570 

Rule  in  case  of  Part-performanct  -  -  575 

Mistakes  in  Deeds,  Sfc.  when  rectified       -  -  576 

Trusts  in  Equity,  when  raised  by  Parol  Evidence  577 


TABLE 


07 


THE    CASES    CITED. 


A  Page 

BBOT  V.  Massie  538 

V.  Plumbe  465 

V.  Sinitli  210 

Abel  V.  Potts  415 

Abery  v.  Dickenson  428 

Abigiiye  v.  Clifton  381 
Abrahams  q.  t.  v.  Bunn  51,  120 

123 

Acerro  v.  Petroni  2(>9 

Ackeiley  v.  Parkinson  357 

Ackland  v.  Pearce  445 
Adam  V.  Kerr         467,  473,  474 

Adams  V.  Davis  129 

V.  A  vans  251 

■        —  V.  Fairbairn  525 

V.  Lingard  144 

Adamthwaite  v.  Syne  366 

Addington  v.  Clode  4;j0 

Addison  v.  Overend  210 
Addy  v.  Grix                   499,  500 

Aickle's  case  442 

Akehurst's  case  135 

Alban  v.  Prilcbett  81 
Alexander  v.  Gibson         99,309 

Allen  V.  Tapp  431 

Allen's  case  389 

Allen  V.  Dundas  344 

Allottv.   Wilkinson  254 

Alner  v.  George  159 

Alsop  V.  Bovvtrel  382 

Althatn's  case  532 
Altliam  (Lord)  v.  Earl    of 

Anglesea  363 

Alves  v.  Bunbury  399 

Alves  V,  Hodgson  605 

Ambrose  v.  Clindon  232 

Amery  v.  Rogers  412 

Vol.   I. 


Page 
Ames  V.  Hill  526 

Amery  v.  Long  3,  436 

Amitie,  Villeneuve,  case  of     54 
Anderson  v.  Sir  W.  Hamilton 

287 

V.  May  446 

V.  Pitcher  557 

Sandson  85,  86 

Andrews  v.  Palsgrave  188 

V.  Dobson  533,  533 

Anglesea  cause  245 

Anscoinb  v.  Shore  57 

Ansley  v.  Birch  16 

Anstey    v.    Dowsing     133,    137, 

495,  496 
Antram  v.  Chase  400 

Anirenlem  v.  Clark  212 

Appleton  V.  Lord  Braybrook 

399 
Arding  v.  Flower  4 

Armorie  v.  Delamirie  160 

Armstrong  v.  Hewitt  260 

Armstrong  and   Lisle  32 

Arnfield  v.  Bate  208 

Arnold  x.  Rivout  212 

Arundel's  (Lord)   case  260 

Ashby  V.  Power  325,  361 

Aslin  v.  Parkin  324,  336 

Atcheson  v.  Everett  25 

Atherford  v.  Beard  429 

Athol's  (Duke  of)  case  328 

Aikins  V.  Hatton  419 

Attorney-General  v.  Bowman 

176 

V,  Bulpit  268 

V.  City  of  Cov- 
entry 430 
V.  Foster  543 


xn 


TABLE  OF  THE  CASES  CITED. 


Pajre 
Attorney-General  v.  Griffith      26 

V.  Grote  545 

■ V  King  3-55 

— V    Le  Mer- 
chant 3,  439 

V.  Parker  542 

■ V.  Theakstone 

407 
Atwood's  case  3G,  41 

Audley's  (Lord)  case  84 

Auriel  v.  Smith  424 

Austin  V.  Willes  602 

Aveson  v.  Lord  Kinnaird  83,  233, 

236 
Ayrey  v,  Davenport  390 

Azyre's  case  84 


B 


Backhouse  v.  Middleton  365 

Bacon's  case  121 

Badcock's  case  34,86 

Baglie  v.  Wylie  395 

Bagot  (Lord)  v.  Williams  334 
Bagshaw  v.  Bp.  of  Bangor  405 
Baikie  v.  Chandless  461,  464 

Baillie  v.  Wilson  51,52 

Baker  v.  Dewey  159,  549 

V.  Fairfax  364 

V.  Jardine  509 

V.  Morley  81 

V.  Pain  577 

V.  Sweet  395 

V.  Tyrwhit  63,  1 36 

Baker's  case  314 

Baldney  v.  Ritchie  440 

Ball  V.  Bostock  62 

V.  Dunsterville  467 

Ballard  v.  Dyson  165 

Balmirino's  (Lord)  case  215 

Ballutti  V.  Serani  171 

Bambridwe's  case  235 

Banbury  Peerage,  case  of        158 
243,  358,  359 
Bank  Prosecutions,  case  of,   224 
Barber  V.  Holmes  413 

Baring  v.  tlaggett  347,  348,  349 
-       —  V.  Royal  Ex.  Ass.  Comp. 

348 
Barker  v.  Sir  Woolstan  Dixie  83 

V.  Macrae  130 

Barlow  v.  Vowel  137,  138 

Barnes  v.  Lucus  451,  483 


Page 
Barnes  v.  Mnwson  251 

Barnstable  (Corporation  of) 

V.  Latliey  431,  433 

Barrett  v.  Gore  70 

Barron  V.  Grillard  81,362 

Barrow  v.  Humphreys  7 

V.  Greenough 

Barry  v.  Alexander 

V.  Babbiiigton 

V.  Nugent 

Barrymore  (Lord)  v.  Taylor 
Barstow  v.  Kilvington 
Barthon  v.  Loughrnan 
Barilet  v.  Pickersaill 


Barzillay  v.  Lewis 
Bateman  v.  Phillips 
Bates  V.  Grabham 
Bath  (Earl  of)  v.  Battersea 
V.  Montague 


578 
438 
255 
527 
110 
577 
290 
120,  121, 

339,  559 
348 

430, 437 
555 
359 


Bathe  v.  Taylor 
Bauerman  v.  Radenius 


39,47 
512 
69,90 
92,99 
Baxter  v.  Brown  227 

Bayley  v.  Lloyd  134 

Bay! is  v.  Attorney-General  539 
Baynham  v.  Guy's  Hotpilal  547 
Bealy  v.  Shaw  165 

Beasly  v.  Magrath  362 

Beaumont  v    Brandy  576 

V.  Fell  632,  535 

V.  Field  534 

Beaver  v.  Lane  212 

Beckwith  v.  Sydebolham  290 
Bedell's  case  549 

Bedford  v.  Birley  95 

Bedle  v.  Beard  161 

Beebee  v.  Parker  249 

Beeching  v.  Gower  267 

Beer  v.  Ward  477, 492 

Beggalley  v.  Jones  257,  258 

Bell  V.  Ansley  92 

V.  Harwood  67 

T.  Smith  63 

Benjamin  v.  Porteus  129 

Bennet  v.  Hertford  (Hun- 
dred oQ  70 

V.  Francis  187 

V.  Neale  163 

V.  Skeffington  163 

V.  Watson  8 

Benson  V.  Olive  325,  161,  363 
Bent  V.  Baker         46,  47,  55,  137 


TABLE  OF  THE  CASES  CITED. 


xxxt 


Page 
Bentley  v.  Cook  77 

Berkeley  Peerage  case   238,  243 
307,  359,  304 
Berrnon  v,  Woodbridge  3G0 

Bernard  (Lord)  v.  Saul  319 

Bernard!  v.  Motteux        347,  348 
Berry  v.  Bauner  328 

Berry  man  v.  Wise  226,  227 

Bertie  v.  Lord  Falkland  548 

V.  Beaumont         477,  482 

Berwick's  case  1 17 

Beltison  v.  Bromley  52,  495 

Bevan  q.  t.  v.  Williams  227 

Bevan  v.  Jones  213 

Bevis  V.  LindfeU  186 

Biddulph  V.  Ather  328 

V.  St.  John  154 

Biggs  V.  Laurence  99 

Biilers  v.  Bowles  ISO 

Biilmore's  case  39 

Binstead  v.  Coleman  559 

Bircli  V.  Depeyster  556,  557 

Bird  V.  Appleton  349 

V.  Tiiompson  131 

Birt  V.  Barlow  409 

V.  Kirshaw  CI 

Black  V.  Holmes  288 

Blackburn  v.  Scholes  187 

Blacket  v.  Lowes  251 

Blackett  v.  Weir  GO 

Blackhani's  case  343 

Blake  v.  Lawrence  191 

Blak«'s  case  563 

Blakey  v.  Porter  437 

Bland  v.  Ansley  64,  83 

Blandford  v.  De  Tastet  7 

Blatch  V.  Archer  391 

Bloxam  v.  Elsie  229 

V.  Hubbard  210 

Blundell  v.  Howard  175 

Blyth  V.  Bamplon  209 

Boardman  V,  Jackson  110 

Boehm  V.  Campbell  506 

Boehilinck  v.^Inglis  401 

V.  Schneider  401 

Bolton  V.  Gladstone  347,  348,  349 

V.  Bp.  of  Carlisle        457 

Bond  V.  Seawell  500 

Bootle  V.  Blundell  497,  445 

Borthwick  v.  Carruthers  199 

Boson  V.  Sanford  210 

Botham  v.  Swingler         132,  133 


Bottomly  t.  Wilson 
Bourne  v.  Turner 
Bowditch  V.  Morley 
Bowen  v.  Ashley 
Bowerman  v.  Sybourne 
Bowie  V.  Langworihy 
Bowles  V.  Johnson 
Bowman  v.  Manzelman 
Bowman  v.  Nichol 
Bowsher  v.  Cally 
Boyle  V.  Boyle 
Bradbury  v.  Grinseil 
Braddick  v.  Thompson 
Bradwin  v.  Harpur 
Bramwick  v.  Lucas 
Bratidreth's  case 
Brangam's  case 
Brard  v.  Ackerman 
Brazier^s  case 
Breedon  v.  Gill 
Breton  v.  Cope 
Brett  V.  Rigdem 
Brewer  v.  Palmer 
Brewster  v.  Sevvel 
Brice  v.  Smith 
Brickett's  case 
Bridgman  v.  Jennings 
Bristow  V.  Wright 
Broadhurst  v.  Baldwin 
Brock  V.  Kent 
Brodie  v.  St.  Paul 
Broomwick's  case 
Brook  V.  Willett 
Brookbard  v.  Woodley 
Broomfield  v.  Jones 
Broughton  v.  Harper 


Page 

61 

56 

213 

508 

353 

466 

6 

443 

512 

106 

339 

166 

563 

532 

147 

95 

426 

141 

19,  20,  233 

378 

414,  424,465 

548 

504 

455 

499,  501 

42 

254 

206,  208 

188 


101 
567 
S69 
211 

490 
206 

78 


Brounker  (Ld)  v.  Atkins  325,  423 

Brown  v.  Brown  75 

V.  Browne  366 

V.   Corporation  of 

London  136 

V.  Bullen  357 

v.  Crashaw  35 

V.  Fox  75 

. V.  Franklyn  346 

V.  Hodgson  192 

V.  Jacobs  213 

V.  KniU  212 

V.  Rose  438 

V.  Sayce  208 

■  V.  Selwin      *  648 

V.  Watts  100 


XXXU 


TABLE  OF  THE  CASES  CITED. 


Pa  ore 

Brown  ats. 366 

Crownsord  v.  Edwards  336 

Brune  v.  Rawlins  243,  492 

Brunton's  case  38 

Bryan  v.  WagstafF  439 

. V.  Winwood  174 

Brydges  v.  Duchess  of  Chan- 

dos  255,  548 
Buchanan  v.  Rucker  353,  309, 
402,  506 
Buckhouse  &  Crosby's  case  565 
Buckland  v.  Tankard  69 
Buckler  v.  Wiilerd  548,  551 
Buckley  v.  Smith  473 
Buckworth's  case  230 
Bullen  V.  Michell  255.  260,  312, 
404,  405,  459,  477,  479 
Bunting's  case  34  I 
Burdon  v.  Browning  121,  339 
Burleigh  V.  Slibbs 
Burnet  v.  Lynch 
V.  Taylor 


89,  443 

451 

473 

49  1 

33,  36 

289 

350,  352 

476 

473 

101 

66,  72 

438 

48 

41^  126 

29 

211 

■     685 

442 

Butchers'  Comp.  v.  Jones  132 
Butler  V.  Carver  132,  303 

's  case  200,  442 

Butt  V.  Barlow  577 
Buttrick  V.  Allen  353 
Buxton  V.  Bed  all  528,  529 
Byam  v.  Booth  395 
Byne  (ex  parte)  5 
V.  Jlooro                         214 


Caffy's  case  121 

Call  V.  Dunning  465 

Calliard  v.  ^aughan  ]5.  17 


Burr  V.  Harper 
Burridge's  case 
Burrough  v.  Martin 
Burrows  v.  Jemino 

• V.  Lock 

Burt  V.  Walker 

V.  Palmer 

Burton  V.  Hinde 

V.  Neville 

Busby  V.  Greenslate 
Bush  V.  Railing 
Bushel  V.  Barret 
Bushwood  V.  Bond 
Butcher's  case 
V.  Jarret 


Pag« 
Callow  V.  Lawrence  513 

Calihorpe  v.  Gough  503 

Calvert  v.  Bovil  349 

V.  Abp.  of  Canterbtiry 

263,  265 
Cambridge  v.  Rous  548 

Catnden  V,  Anderson  411 

Camerton  v.  Light  foot  380 

Campbell  v.  Christie  515 

V.  French  438 

V.  Tvvemlow      88,  380 

V.  Wilson  164 

Cardwell  v.  Martin  612 

Careless  v.  Careless  532 

Carey  v.  Askew  494 

V.  Adkins  66 

Carlisle  (Mayor  of)  v.  Blamire 

89,  443 

V.  Trears  208 

Carpenters'    Comp.   v.   Hay- 
ward  18,  51,  58 
Carr  v.  Heaton  164,  325 
Carrington  (L<1.)  v.  Payne       502 
Carter  v.  Pearce 

V.  Pryke 

Cartidge  v.  Griffiths 
Cartwright  v.  Williams 
Cass's  case 
Casson  V.  Dade 
Castile  v.  Bainbridge 
Casllemaiii's  (Ld.)  case 


Casilelon  v.  Turner 
Cater  v.  Price 
Cates  V.  Hardacre 

q.  t.  V.  Winter 

Cator  V.  Stokes 


Catt  V.  Howard 
Cavan  v.  Stewart 
Cazenove  v.  Vaughan 
Celia's  case 
Chad  V.  Tilsed 
Chadwick  v.  Bunning 
Chadwick  v.  Sills 
Chamberlain  v.  Porter 
Champian  v.  Atkinson    130,  17S, 

174 
Chandler  v.  Thompson  165 

Chapman  v.  Poynton  6 

V.  Graves      41,  72,  75 

V.  Beard  227 

V.  Smith  249 


52 
172 
212 
134 
111 
501 
26 
32,  35, 
291 
539 
500 
276 
3,  439 
391 
93 
853,  399 
366,  395 
29,  32 
541 
386 
525 
506 


TABLE  OF  THE  CASES  CITED. 


Page 
Chadman  V.  Cowlan  253,419 
Charlesworth's  case  29 

Charnock's  case  3G 

Chater  v.  Hawkins  30 

Chatfield  V    Fryer  163,  2o0 

Chaurand  v.  Angerslein        290, 
55G,  557 
Chelsea  Waterworks  (Gov. 

of)  V.  Cowper  477 

Cheyne  v.  Coops  GO 

Cheyney's  (Lord)  case  532,  5 18 
Cholrnondeley  v.  Clinton  53S 
Christian  v.  Coomb  293 

Christie  v.  Secretan  347,  348 
Churchill  V.  Wiikins  208 

City  of  London,  case  of  6G 

Clancy's  case  29 

Clanricard's  (Lord)  case  422 
Clanricard  (Lord)  v.  Lady 

Denton  57 

Clarke  v.  Saffery  70,  2G9 

V.  Grant  5G9 

V.  Gray  189,  209 

V.  Shea  131 

Clarkson  v.  Hanway  5.53 

V.  Woodhouse  253 

Clay  V.  Willan  189 

Blegg  V.  r.,evy  60-5 

Clerk  V.  Bedford  265 

Clifford  V.   Burton  86 

V.  Taylor  439 

Clifton  V.  Wal(nesley  547,  548 
Clothier  v.  Chapman  2-51 

Clowes  V.  Higginson  560 

Clutterbuck  v.  LJ.  Hunting- 
tower  69 
Cobb  V.  Carr  71 
Cobden  v.  Kendrick  146 
Cochran  v.  Ret  berg  556 
Coc.hrane's  (Lord)  case  283 
Cockman  v.  Mather  423 
Cocksedge  v.  Fanshaw  314 
Coe  V.  Westernhatn  344 
Coglan  V.  Williamson  473 
Cohen  v.  Hannam  208 
Coker  V.  Farewell  230,  363 
Clochester,  Mayor,  &.c.  case 

of  136 

Cole  V.  Parkin  517 

Coliedge  v.  Horn  106 

Collenridge  v.  Farquharson  232 
Collelt  V.  Jennis  136 


Collelt  V.  Lord  Keith 
Collins  V.  Blantern 
Colson  V.  Selby 
Compagnon  v.  Martin 
Cook  V    Parsons 
Cooke's  case 
Cooke  V.  Booth 

V.  Fountain 

V.  Maxwell 

V.  Miinstone 

V.  Sholl 

V.  Tanswell 

Cooper  V.  Marsden 

V.  South 

V.  Gibbins 

Coore  V.  Clare 
Cope  V.  Bedford 
Copeland  v.  Watts 
Coopley  (Sir  J.)  v.  Day 
Corbet  v.  Corbet 
Corder  v.  Drakeford 
Corking  v.  Jarrard 
Corsbie  v.  Oliver 
Corsen  v.  Dubois 
Cort  V.  Birkbeck 
Coshman  v.  Goldney 
Cotterell  v.  Apsey 

V.  Griffiths 

Cotterill  V.  Cuff 
Courteen  v.  Touse 
Cousins  V.  Brown 
Cowling  V.  Ely 
Cox  V.  Brain 

v.  Copping 

V.  Parry 


Craib  v.  D'Aeth 
Cranburne's  case 
Craythorne  v.  Swinburne 
Cresby's  (Sir  P.)  case 
Crew  q.  t.  v.  Blackl)urn 

q.  t.  V.  S.mnders 

Crimes  v.  Smith 
Cris[)  V.  Anderson 
Cris<pin  v.  Williamson 
Croker's  case 
Croft  V.  Pawlett 
Cromack  v.  Heathcote 
Cromwell's  fLord)  case 
Crosby's  case  30,  3.5 

V.  Percy  473,  474 

V.  Wadsworth  529,  530 

Cross  V.  Kayo  227 


Page 

no 

551 

191 
201 
499 

230,  407 
547 
364 
31 
208 
355 
452 

260,  264 
411 
439 
527 
421 
141 
510 

363,  396 
507 

131,  133 
171 
436 
328 
60,  68 
187 
164 
209 

105,271 
214 
89,  362 
187 
429 
187 
90 
291 
549 
39 
429 
431 
162 
522 

209,213 
121 
601 
143 
549 


xxxtr 


TABLE  OF  THE  CASES  CITED. 


Cross  V.  Sailer 

V.  Lewis 

Crossfield's  case 
Crowtlier  v.  Ifopwood 
Crutcliley  v.  Mann 
Cuddinjjton  v.  Wilkins 
CufTv.  Penn 
Cunliffe  v.  Sefton 
Currie  v.  Child 
Curry  v.  Edensaw 
Cullibert  v.  Gostling 
Cutter  V.  Powell 
Cults  V.  Pickering 

D 


Page 

335 

163 

US 

20 

51)5 

35 

5G1 

473,  503 

74,  473 

528 

130 

558 

140,  146 


Da  Costa  V.  Villa  Real  341 

Dalison  v.  Starke  221 

Dalrymple  v.  Dalrymple  401 

Dalzell  V.  Mair  159 

Damaree's  case  98 

Daniel  v.  North  160 

Daniel!  v.  Pitt  101 

Dartmouth  (Lady)  v.  Rob- 
erts    257,324,361,393,394 
Dartnall  v.  Howard  394 

Darwin  v.  Upton  163,  165 

Davies's  case  520 

Davies  v.  Edwards  192 

V.  Hunnphreys  430 

V.  Pierce  254 

V.  Ridge  91 

Davis  and  Carter's  case  29 

Davis  V.  Dinwoody        82,  88,  91 

V.  Living  73 

V.  Williams         399,  509 

Dawbar's  case  42 

Dawson  V.  Duke  of  Norfolk    164 
Day  V.  Bower  192 

Deacon's  case  178 

Deade  v.  Hancock  250 

Deakin's  case  161 

De  Berenger's  case         276,  287 
De  Gaminde  v.  Pigon  159 

De  Gaillon  v.  L'Aigle  186 

De  La  Motte's  case         291,442 
485,  486 
Denn  y.  Fulford  387 

V.  Spray  249,  417 

V.  White  61 

Derby's  (Lord)  case  338 

De  Sailly  t.  Morgan  293 

Degpard'a  oaso  36,  42 


Page 
De  Symonds  v.  De  La  Cour     49 

260 
229 
198 
251 
264 
344 
313 
235 
414 
129 
59 
210 
135 
276 
49 
221 
289 


Dickinson  v.  Shee 

v.  Coward 

Dickson  v.  Evans 
Didsbury  v.  Thomas 
Digby  v.  Stedman 
Dike  V.  Polhill 
Dillon  v.  Parker 
Dingler's  case 
D'Israeli  v.  Jowett 
Dixon  v.  Cooper 
V.  Parker 


Dockvvray  v.  Dickenson 

Dodd's  (Dr.)  case 

Dodd  v.  Norris 

Doddington  v.  Hudson 

Doe  V.  Pearson 

V.  Perkins 

dem.  Allason  v.  Sisson  249 

Ash  V.  Calvert        344 

Askew  V.  Askew    418 

Bapgalley  v.  Jones  258 

Eaker  v.  Woomb- 

well  108 

Banning  v.  Griffin  198, 

239 

Beach  v.  Lord  Jer- 
sey 533 

Bennington  v. 

Hall  424 

Bingham  v.  Cart- 
wright  221,256 

Bromfield  v. 

Smith  527 

Prown  V.  Brown     534 

Brown  V.  Green- 
ing 534 

Bulkley  v.  Wil- 

ford  532 

Chevalier  v.  Huth- 

waite  532,  543 

Chichester  V.  Ox- 

endon  534 

Churchwardens  of 

Croyden  v.  Cook    424 

Charges  v.  Foster   108 

Cook  V.  Danvers    494, 

532 

Copley  V.  Day         510 

Digby  V.  Steel  69 

Dyke  v.  Whilting- 

ham  606 


TABLE  OF  THE  CASES  CITED. 


Page 
Doe  dem.  Fen  wick    v.  Reed  1C2 

Foley  V.    Wilson     1G4 

Foster  v.  Williams  56 

.        Foster  V.  Sisson      173 

Freeland  v.  Burt  543, 

544 

George  v.  Jesson  197, 

239 

-— Haldnne  and  Urry 

V.  Harvey  444 

"-■      Hall  V.  Benson       554 

Handson  v.  Fyldes  545 

■ Harris  v.  Greathed   533 

Harrup  v.  Green       76 

. Hatch  V.  Bluck       389 

— — Hindson  v.  Kersey  133 

. Hotchkisv.  Pearce470 

Human  v.   Pettelt  358 

. Jackson    v.  Ash- 

burncr  527 

■         James  v.   Brawn     226 

Johnson  v.   Lord 

Pembroke  239 

■ Johnson  V,  Johnson  474 

Jones  V.  Wild  65 

— — Jupp  V.  Andrews    146 

Leicester  v.  Briggs  108 

Lloyd  V.  Deakin      197 

' Lowden  v.  Watson  228 

Maddock  v.  Lyne  492 

Mansfield  v.  Peach  469 

Morris  v.  Ilosser     380 

Norlhey  v.  Harvey  240 

^Oxendon    v.    Chi- 
chester 535 

Peters  v  Ilopkin- 

son  554 

Recce  v.  Robson  255, 

256,  257 

Roberts  v.  Roberts  553 

Sheppard  v.  Allen  107 
Small  V.  Allen  552 
Spicer  v.  Lea  551 

St.  John  V.  Hore  504 
•  Sutton  V.  Ridgway  236 
Sykes  v.  Durnford  465 
Tilman  v.  Turner  240, 
243 
Toilett  V.  Sailer     216, 


Page 
Doe  dem.  Tyndale  r.  Heming  451 
Tyrrel  v.  Lyford     534 

538 
Walker  v.  Stephen- 
son 303 

Walker  v.  Groves     527 

Warmey  v.  Grey    439, 

444 

Webber  v.  Ld.  G. 

Thynne  259 
Westlake  v.  West- 
lake  532 

Winckley  v.  Pye     107 

Wood  V.  Teage         65 

Wood  v.  Morris      221 

Wright  V.  Manifold  501 

Doker  v.  Hasler  83 

Donaldson  v  Thompson  349 

Doncaster  (Mayor  of^  v.  Dry 

230 
Dongal  V.  Wilson  163 

Dormer  v.  Fortescue  76 

Douglas  ca'ise  166,  245 

Dover  V.  Maestaer  518 

Dowden  v.  Fowle  91 

Dowdeswell  v.  Knott  66 

Downes  v.  Moreman  425 

V.Richardson  513 

V.  Skrymsher  215 

Down's  case  21 1 

Dowset  V.  Swaet  532,  535 

Doxon  V.  Haigh  451,  457 

Drake  v.  Marryat  99 

V.  Munday  527 

V.Smyth  509,419 

Drant  v.  Brown  525 

Drewry  v.  Twiss  217 

Du  Barre  v.  Livette  144 

Du  Bosi  v.  Beresford  232 

Duffin  v.  Smith  146 

Duke  V.  Aldridge  92 

Duncan  v.  Scott  388 

Dundas  v.  Ld.  Weymouth       212 
Dupays  v.  Shepherd  407 

Durham's  case  41 

Durham  (Bp.)  v.  Beaumont    308 
Durrel  v.  Bederley  290 

Durslon  v.  Tutham  208 

Dutton  V,  Colt  33,  366 


TABLE  OF  TIiE  CASES  CITED. 


E 


PugC 


Page 


Eaglelon  nnd  Coventry  v. 

Kins'^ion  485 

Earl  vr Lewis  420,  481 

East  India  Company  v.  Glover 

186 
V.  Donald 

154 
Eaton  V.  Lyon  547 
Eccleston  v.  Petty  90,  362 
Eden  (Sir  J.)  v.  Earl  of  Bute  543 
Eden  v.  Smith  548 
Edie  V.  E.  L  Company  556 
Edmonds  v.  Walter  271 
Edtnonstone  v.  Plaisted  300 
Edwards  v.  Crock  82 
V.  Harvey                  239 

■  —  V.  Lucas  213 

■  —  V.  Vesey  428 
Egerton's  case  179 
Elden  v.  Keddeil  398 
Eldridge's  case  1 1 1 
Eidridge  V.  Knott  160 
Ellis's  "case  114 
Ellis  V.Smith  498,499 
Ellis  V.  Wall  186 
Ellis  V.  Watson  411 
Ely  (Dean  and  Ch.  of)  v. 

Warren  174,477 

Emerson  v.  Blonden  85 

Emmet  v.  Butler  78 

V.  Bradley  74 

England  v.  Roper  466 

Ennis  V.  Donisthorne  231 

Entick  V.  Carrington  439 

Erskine  v.  RufTle  173 

Evans  and  Lake,  case  of  264 
Evans  V.  Lewis  210 

V.  Phillips  426 

V.  Roberts  530 

V.  W^illiams  66,  140 

V.  Yeatherd  60 

Evelyn  v.  Haynes  335 

Everth  v.  Hannam  348 

Ewer  V.  Ambrose  293,  309,  310, 

394 
Exeter  (Mayor  of)  v.  Cole- 

maH  432 

Exon  V.  Russell  208 

Ex  parte  Hooper  548 

Eyre  v.  Palgrave  219,  424 


Fabrigas  v.  Mostyn 
Fachina  v.  Sabine 
Fairlie  v.  Christie 
V.  Hastings 

V.  Birch 

Falconer  v.  Hanson 
Falkner's  case 
Farr  v.  Price 
Fasset  v.  Brown 
Faulder  v.  Silk 
Fearshire's  case 
Fell  V.  Chamberlain 
Fenn  v.  Granger 
Termor's  case 
Ferrar's  case 
Ferrers  (Lord)  v.  Shirly 

Field  V.  Beaumont 
Filmer  v.  Gott 
Fisher  v.  Heming 

V.  Kitchingman 

V.  Lane 

V,  Ogle 

V.  Samuda 

Fitzgerald  v.  Else 
Flad  Oyen,  case  of 
Fleming  v.  Windham 
Flindt  V.  Atkins 
Flower  V.  Young 
Folkard  v.  Hemet 
Folkes  V.  Chad 
Fonnereau  v.  Poyntz 
Fonsick  v.  Agar 
Foot  v.  Haynes 
Forbes  y.  Graham 

V.  Wale 


101 

22,  23 

515 

99,  102 

391 

357,  451 
111 

505,  507 
475 
375 
113 
567 
72 
341 

323,  3:i5 
358, 

486,  488 
3,  436 
551 
141 
381) 
396 

348,  352 
457 
475 
349 

369,  370 
399 
412 
43'J 
291 
545 
367 
142 
37 
477 
366 
42 
64,  138 
202 
389 
475 


Ford  V.  Guy 
Fordham's  case 
Forrester  v.  Pigou 
Forty  v.  Lnber 
Foster  v.  Compton 
Fosset  v.  Brown 
Fotheringham  v.  Greenwood 

52,64 
Fountain  v.  Young  144 

Foxcraft  v.  Lister  575 

Foxley's  case  32 

Francia's  case         117,442,485 
Francisco  v.  Gilmore  367 

Franklin's  case  406 


TABLE  OF  THE  CASES  CITED. 


xxxrit 


t^raser  v.  Hopkins 

V.  Marsh 

Free  v.  Hawkins 
Freeman  v   Arkell 
-— V.  Phillips 

Erench  q.  t.  v.  Coxon 

V.  Patten 

Friend's  (Sir  J.)  case 

Frith  V.  Gray 
Frontine  v.  Frost 
Frost  V.  Holloway 
Froysell  v.  Lewellyn 
Fry  V.  Wood 
Fuller  V.  Fotch 

V.  Prentice 

Furley  v.  Newnhani 

dem.  Mayor  of 

lerbury  v.  Wood 
Farneaux  v.  Hutchins 

G 

Gahagan's  case 
Gainsford  v.  Grammar 

140, 
Galbraith  v.  Neville 
Gale  V.  Half  knight 
Galen,  case  of  the 
Gall  V.  Croft 


Page 
411 
134 
555 

455 

240,  249, 

359,  204: 

3i9 

514,  515 

276,281, 

307,  407 

217 

19S 

283 

109 

ties,  477 

355 

6 

G,  15 

Can- 

554 


Page 
Glyn  V.  Bank  of  England       254, 
265,  364 


r 


174 


153 
101,  106, 
143,    145 

351 

232 
54 

548 


tianer  v.  Lady  Laneborough  401 

Gape  V.  ITandley  451 

Garland  v.  Scoones  389 

Garnet  v.  Ball  101 

Garnons  v.  Barnard  250 

V.  Swift  218,  519 

Garret  v.  Lister  398 

Garrick  v.  Williams  387,  461 

Gaul's  case  319 

Geery  v.  Hopkins  428 

Germain  v.  Frederick  210 

Gevers  v.  Mainwaring  56,  130 

Geyer  v.  Aguillar  354 

Gibbon's  case  422 

Gibson  v.  Hunter  313,  314 

V.  Maccarty  337 

Gillum  V.  Stirrup  382 

Gladstone  v.  Neale  209 

Glossop  V.  Poole  376 

Vo^..  L  E 


V.  Thorpe 

Goater  v.  Nunnely 
Goddafd's  case 
Godfrey  v.  Norris 

- — '■ V.  Macauley 

Gold  V.  Jones 

Goldie  V.  Shuttleworth  105, 
Goldschmidt  v.  Marryat 
Goraan  v.  Salisbury 
Goodacre  v.  Breame 
Goodes  V.  Wheatley 
Goodier  v.  Lake 
Goodright  v.  Saul 

V.  Hicks 

Goodson  V.  Forbes 
Goodtitle  v.  Baldwin 

V.  Braham 

V.  Lamiman 

V.  Southern 

V.  Walford 

V.  Walter 


3!6 
438 
553 
473 

408 
488 
466 
439 
565 
59 
202 
452 
158 
176 
508 
161 
291,493 
215 
533 
52,  137 
216 
4 
448,  449, 
45ii 
•  •"     "'   V.  Austen  208 

V.  Gordon  212 

— 's  (Lord  G.)  case  98, 

182,  276, 424 

's  case  6,  204,  226 

Gorham  v.  Thompson  408 

Gorton  v.  Dyson  443 

Goss  V.  Tracy  52,  364,  473 

Goss  V.  Watlington  258 

Gollieb  V.  Danvera  445 

Gough  sf.  Cecil  474 

Gracewood  v.  437 

Grafton  (Duchess  of)  v.  Holt  31 1 


Goodwin  v.  West 

Gordon  v.  Secretan 


Graham  v.  Dyster 

V.  Hope 

V.  Peate 

— V.  Robertson 

Grant  v.  Jackson 

's  case 

Gray's  Case 
Grayson  v.  Atkinson 

Greaves  v.  Ashlin 
Green  v.  Dunn 


441 

408 
160 
210 
93,  362 
116 

fin 

498,  499, 
502 
562 
110 


XXXTJU 


TABLE  OF  THE  CASES  CITED. 


Page 

Green  v.  Hearn  186 

V.  Greenbank  208 

V.  Rennett  213 

——  V.  New   River  Com- 
pany     56,  Ul,  a26',  332 

V.  Gaturk  231 

V.  Hewitt  375 

V.  Rondo  386 

— —  V.  Proude  405 

V.  Davies  508 

Greg's  case  117 

Gregory  v.  Eraser  520 

V.  Howard  108,  109 

V.  Parker 


86 

468,  475,  476 

526 


Grellier  v.  Neale 
Grey  v.  Smith 

Griffith  V.  Matthews  164 

Griffin's  case  116 

Grigg's  case  77,  84,  85 

Grillard  v.  Hogue  15 

Grimwood  v.  Barritt  213 

Groenvelt  v.  Burwell  357,  426, 
428,  434 

Guest  V.  Caumont  216 

Guiiliam  v.  Hardy  385 

Gunnis  v.  Erhart  560 

Gunston  and  Downea  39,  47 

Gurney  v.  Langlands  493 

Gutteridge  v.  Smith  188 

Gwinnett  v.  Phillips  206,  213 

Gyfford  v.  Woodgate  391 

Gyles  V.  Hill  386 


H 


Haddow  V.  Parry  256 
Hagedorn  v.  Reid           263,  447 

Hale's  case  1 10 

Halifax's  (Lord)  case  195 

Hall  V.  Cazenove  553 

V.  Hill  86 

Hallett  V.  Mears  0 

Haymer  v.  Raymond  217 

Hammond  v.  Stewart  4 

Hampshire  v.  Pierce  537 
Hancock  v.  Welch          324,  332 

Hanford  v.  Palmer  209 

Hands  V,  James  501 

Hanson's  case  183 

• V.  Parker  91 

Hardcastle  v.  Sclater  392 


Page 
Harding  v.  Carter  100 

Hardy's  case     95,  96,  184,  275, 
276,  284,  290 
Hare  v.  Shearwood         559,  567 
Harling's  case  34 

Harm  an  v.  Lasbrey  62 

Harper  r.  Brook  255 

V.  (;harlesworth  174,  166 

Harrington  v.  Fry  48S 

V.  M'Morris  171 

V.  Wise  527 

Harris  v.  Cook  216 

V.  Bp.  ofLincoJ»532,543 

V.  Mantle  201 

V.  Tippett  273,  283 

V.  White  35 

Harrison's  case      291,  307,  369, 
372,  373 

V.  Blades  240, 260,  474 

V.  Harrison  600 

V.  Vallance  92 

V.  Williams  431 

Harrow  v.  Rislip  329 

Hart  V.  M'Namara  354 

\\  arvey  v.  CoUison  68 

Harwood  v.  Sims   249,  250,  251 


V.  Wallis 
Haslem's  case 
Hatch  V.  Blissett 
Hatfield  v.  Thorpe 
Hathaway  v.  Barrow 

Havelock  v.  Rockwood 
Hawkeswood's  case 
Hawkins  v.  Kemp 
V.  Warre 


121 


577 
40 

5 
496 
337, 
339 
349 
520 
472 
625 
648 
364 
242 
59,  158 
52 
289,  519 


Haynes  v.  Hare 
Haws  V.  Hand 
j  Hayward  v.  Fermiow 
Head  v.  Head 
Heath  v.  Hall 
Hedge's  case 
Helliard  v.  Jennings         65,  495 
Helyer  v.  Hawke  99 

Henckle  v.   Royal   Ex.  Ass. 

Com. 
llennell  v.  Lyon 
Henry  v.  Adey 
V.  Lciiih 


576 
394 
386,  399 
218,  415,  440 
Henshaw  v.  Pleasance  355 
Herbert  v.  Ashburner  428 
V.  Cook               351,  380 


TABLE  OF  THE  CASES  CITED. 


Page 

Herbert  v.  Reid  543,  548 

V.  Walters  315 

V.  Tuckall  240 

Hereford  (Bp.  of)  v.  Duke  of 

Bridgewater  430 

Hesfon's  case  32 

Hetherington  v.  Kemp  447 

Heward  v.  Shipley  126 

Hewson  v.  Browu  385 

Hicks's  case  319 

Higginson  v.  Clowes  560 

Higgs  V.  Dixon  465 

Higham  v.  Ridgway  238,  255, 

256 

Hill  V.  Fleming  74 

V.  Patten  514 

V.  Wright  171 

Hill's  case  205 

Hillyard  v.  Grantham  336 

Hillyard's  case  337 

Hilton  V.  King  497 

Hindson  v.  Kersey  495,  497 

Hitchen  v.  Campbell  324,  333 

Hoare  v.  Allen  234 

V.  Coryton  266 

V,  Graham  555 

V.  Mill  212 

Hobhouse  v.  Hamilton  388,  464 


Hobson  V.  Parker 
Hockin  V.  Cook 
Hockley  v.  Lamb 
Hodge  V.  Fillis 
Hodges  V.  Aikis 

— . V.  Drakeford 

Hodge's  case 
Hodgkinson  v.  Fletcher 

V.  Willis 

Hodgson  V.  Fullarton 
Hodgson's  case 
Hodneit  v.  Forman 
Hoe  V.  Naihorpe 
Hogg  V.  Snaith 
Holcomb  V.  Hewson 
Holcroft  V.  Heel 

—  V.  Smith 

Holland  q.  t.  v.  Duffin 


Holland  V.  Hopkins 
Hollis  V.  Goldfinch 
Holt  V.  Squire 
Home  V.  Lord  T.  Bentinck 
Honeywood  v.  Peacock  466,  473, 

476 


430 
208 
57 
208 
431 
504 
116 
81 
394 

257,  260 

176,  276 
473 

344,  397 
555 
172 
163 

364,  462 
518 
190 
174 
105 
287 


Page 

Hope  V.  Atkins  559 

Hopewell  V.  De  Pinna  198 

Hopkins  v.  Neale  59,  69 

Home  V.  Smith  7 

Home  Tooke's  case  95 

Horsefall  v.  Testar  212 

How  V.  Hall  442 

Howard  v.  Tremaine  366 

Howell  V.  Lock  131,268 

V.  Richards  212 

Hubbard  v.  Jackson  514 

V.  Johnstone  412 

Hudson  V.  Robinson  60,  68 

Huet  V.  Le  Mesurier  411 

Hughe's  case  224 

Hughes  V.  Cornelius  347 

V.  Gordon  553 

V.  Wilson  416 

Hull  (Mayor  of)  V.  Horner    328 

Humble  v.  Hunt  416 

Humphrys  v.  Knight  404 

Hunt  V.  Andrews  416 

V.  Hart  239 

V.  Stevens  524 

Hunter  v.  Britts  366 

V.  Gibson  172 

V.  King  123 

Hurst  V.  Watkis  192 
Hussy  V.  Jacob  319 
Hutchinson's  case  350 
V.  Piper  208 


ggulden  V.  May  547 

Iderton  v.  Atkinson  62 

llingworth  v.  Leigh      261,  395, 

420 
ncledon  v.  Burgess  322 

ngram  v.  Dade  133 

ngram  v.  Lee  525,  562 

rnham  (Lord)  v.  Child  548,570 
srael  v.  Benjamin  188,  189,  524 
vat  V.  Finch  257 

ve's  case  317 


Jaclfson  V.  Allen 
V.  Carter 


452 
559,  567 
113 


Jacob's  case 
Jacob  V.  Lindsay  110,  220,  505, 

508 


xl 


TABLE  OF  THE  CASES  CITED. 


Page 

Jacobs  V.  Hart  51  () 

.Tagger's  case  84 

James  v.  Hatfield  59,  69,  90 

Janson  v.  Rany  154 

Jarrett  v.  Leonard  107 

Jefferies  v.  Duncoinb  217 

Jeffery  v.  Walton  502 

Jeifs  V.  Ballard  198 

Jenkin's  case  1 17 

Jenkins  v.  Blizard  408 

V.  Q,uii)chaiit  577 

Jenkinson  v    Pepys  500 

J.Qnk's  case  207 

John's  case  85,  235 

Johnson  v.  Browning  71 

V.  Duke  of  Marl- 

borouiih 


—  V.  Giison 
— -  V.  Lawson 
---  V.  Llewellyn 

—  V.  Mars 

—  V.  Mason 

—  V.  Ward 


Johnstone's  case 
Jolley  V.  Taylor 
Jones  V.  Bow 
V.  Brewer 

V.  Brooke 

V.  Jones 

V.  Lake 

V.  Mason 

V.  Newman 

V.  Randell 


V.  Sandys 
V.  Tucker 
V.  Waller 
V.  Wood 


513 

451 

240 

437,  448 

208 

104,406 

104,415 

207 

442 

341 

15,  474 

43,  61,  62 

363 

499 

28,  473 

532 

393,  396,  406, 

424 

409 

545 

259,  262,  481 

391 

111 


Page 
Kemp  V.  Mackuill  493 

Keinpton  dem.  Boyfield  v. 


Jones's  case 
Jordaine  v.  Lashbrooke  44,  51,  43 
Jordan  v.  Sawkins  567 

Jory  V.  Orchard  446 

Joynes  v.  Statham  569,  572,  574 
Juxon  (Sir  W  )  v.  Ld.  Byron  144 


K 


Kahl  V.  Jansen  100 

Kains  v.  Knightly  555 

Keightley  v.  Birch  56 

Kellington  (Vicar  of)  v.  Trin. 
'  Coll.  Oamt|.  405 


Cross 
Kennerley  v.  Nash 
Kenn's  case 
Kensington  v.  Inglia 

Kent  V.  Lowen 
Kershaw  v.  Cox 
Keymer  v.  Summers 
Kilmarnock's  case 
Kinder  v.  Williams 
Kindersly  v.  Chase 


Kine  V.  Beaumont 


385,  398 
513 
341 

454,  458, 
514 
99,  232 
516 
164 
215 
5 

346.  347. 

348,  349 
445 


The  Kins  v. 


Sfe  Rex,  infra. 


King   dem.    Lord  'f  hanej  v. 
Foster  421 

V.  Fraser  216 

V.  King  437 

Kingston  (Mayor  of)  v.  Hor- 
ner 161,  422 
Kington's  (Duchess  of)  case 

144,  146,  320,  333,  340, 
343,  345,  355 
Kinnersley  v.  Orpe  324,  387,  383 
Kinsman  v.  Crook  363 

Kirtland  v.  Ponnsett  216 

Kirwan  v,  Cockburn  408 

Knight  V.  Dauler  387 

V.  Halsey  163 

Knill  V.  Williams  512 


Lacon  v.  Higgins 
Laing  V.  Barclay 

V.  Raine 

Lake  V.  Billers 
Lambe's  case  1 10, 
Lampon  V.  Cork 
Lane  v.  Hegberg 
Langdon  v.  Hulls 
Langhorn  v.  Allnut 
V.  Colocfon 


Latham  v.  Rutley 
Latkow  V.  Eamer 
Laughton  v.  Ward 
Lawley's  (Lady)  case, 
Layer's  case  5,  39,  1 15, 
292,  442,  485, 
Leader  v.  Barry 


63,  4oa 

142 

466 

391 

115,  371 

108,  549 

357 

445 

100 

515 

208,  525 

376 

165 

85 

281,291, 

488,  491 

4li 


TABLE  OF  THE  CASES  CITED. 


Le  Cniix  V.  Eden 

Le  Cheiniiiant  v.  Pierson 


Page 
346 
506 


Lee  q   I.  v.  Birrel 

V.  Gaii?ell 

V.  Libb 

V.  Meacock 

's  case 

Leeds  V.  Cook 
Leery  v.  Goodson 
Leeson  y.  Holt 
Legal  V.  Miller 
LegatI  V.  Tollervey 
LjCggett  V.  Cooper 
Leglise  v.  Cliampante 
Le  Go3s  V.  Lovempre 
Leigh  V.  Banner 
Leighton  v.  Leighton 
Leaiayne  v.  Stanley 
Lemon  v.  Dean 
Leslie  V.  De  la  Torre 
Lethulier's  case 
Lewis  y.  Baker 

V.  Price 

Ley  V.  Ballard 
Liebman  v.  Pooley 
Lightfoot  V.  Cameron 
Lilly  V.  Ewer 
Lincoln  (Bp.  of)  v.  Ellis 
Lindo  V.  Rodney 
Lipscomb  V.  Holmes 
Lister  q.  t.  v.  Priestly 
Littler  v.  Holland 
Lloyd  V.  Passingham 

V.  Williams 

V.  Willan 

— V.  Woodhgll 

L'Neve  v.  L'Neve 
Lock  V.  Nor  borne 
Lockhart  v.  Graham 

■ 's  case 

London  (Mayor  and  Cpnj- 
monalty  of) 

y.  Clerk  252, 

Corporation  v.  Long 


V.  Mayor  of  Lynn 
V.  Swinj,and 
Greville 


Long  V 
Longchamp  v.  Fish 
Lopez  V.  De  Tastet 
Lothian  v.  Henderspn 


145,287 
30 

408,  500 
416 
38,  520 
443 
208 
408 

565,  569 
426 
188 
210 
260 
530 

317,  383 
497 
475 
555 

556,  557 

429 

163 

475 

457 

4 

557 

325 

346 

188 

226 

2i)8 

411 

74 

101 

382 

154 

324 

67 

116 

71 
327 

91, 
541 
422 
428 
188 
498 
208 
347 


Page 
Lovai'b  (Lord)  case  17,  31,  131 
267,  331 
Lovelock  V.  Chively 
Loveridge  v.  Bothain 
Lowe  V.  Joliffe 
Lowfield  V.  Bencroft 

V.  Stoneham 

Lowry  v.  Doubleday 
Lowlher  v   Raw 
Lucas  V.  De  la  Cour 


V.  Novosilienski 

Luttrell  V.  Lea 

V.  Reynal 


193 

108 

502 

333 

548 

7 

174 

92,  362 

159 

385 

41,307,  363 

479,  481 

359,  424 

5 


Lygon  V.  Strutt 

Lynch  v    Clarke 

Lyne,  Ex  parte 

Lynn  (Mnyor  of)  y.  Denton    432 


M 


Mabank  v.  Brooks  548 

Macbride  v.  Macbri^e    282,  283 
Macclesfield's  (Lord)  case      276 

387 

490 

203,  204 

503 

471 

130 

475 

503 

530 

386,  391 

201 

4 

100 

187 

527 

276 

107.  229 


Macdougal  v.  Young 

Macferson  v.  Thoytes 

Mackalley's  case 

Mackery  v.  Newbolt 

Macqueen  v.  Farquhar 

M'Braine  v.  Fortune 

M'Craw  v.  Gentry 

M'Kenzie  v.  Eraser 

V.  Banks 

M'Niel  V.  Perchard 

M'Quillin  V.  Co5 

Maddison  v.  Shore 

Maesters  v.  Abraham 

Malcom  v.  Fullerton 

Maldon's  ca^e 

Maloriey  v.  hartley 

Maltby  V.  Christie 

Manby  v.  Curtis     260,  262,  477, 

481 

Manchester  Mills,  case  of      328 

211 
465 
r2,  75 
366 
422 


Manifold  v.  Pennington 
Manners  q.  t.  v.  Postan 
Mant  V.  Manwaring 
Marden  v.  Bound 
Marriage  v.  Lawrence 


Marsh  v.  Colnet 

V.  Meager 

V,  Robinson 


414,  424,  478 
232 
411 


x\\\ 


TABLE  OF  THE  CASES  CITED. 


Marshall  v.  CliflT 
Marshall  v.  Parker 
Marshalsea  case 
Martin  v.  Goble 

V.    Howard 

V.  Heiirickson 

V.  Podger 

V.  Thornton 


Pat»e 
105,100 
:US 
357 
105 
130 
50 
391 
334 

iMassy  v.  Johnson  427 

Master  v.  Miller  512 

Masters  v.  Masters  543 

q.  t.  V.  Drayton  51 

Matthews  v    Hay  don  129 

V.  Port  421 

Matson  V.  Booth  512 

Maundre'I  v.  Kennett  01 

Mawman  v.  Gillet  49 

Mawson  v.  Hartsink  292 

May  V.  Gwynne  433 

May  V.May  240,410 

Mead's  case  85 

Mead  v.  Robinson  120,  415,  424 
Meath  (Bp.)  v.  Ld    Belfield  252, 

540 
Mease  v.  Mease  549 

Mee  V.  Reed  23 

Meek  ins  v.  Smith  4 

Mellish  V.  AInut  187 

Melville's  (Lord)  case    102,  407, 

459 
Meredith  v.  Gilpin  58,  128 

Meres  v.  Ansell  559 

Merle  y.  More  141 

Mersey  and  Irwell  Nav. 

Comp.  of,  v.  Douglas  217 

Michell  V.  Rabbetts  479 

Middleton  v.  Brewer  188 

■ v.  Janverin  401 

V.  Sanford  400 

Mildinay's  case  549 

Mildrone's  case  23 

Miles  V.  Sheward  209 

Miller  v.  Falconer  50 

V.  Foster  419 

V.  Henrick  401,500 

■ V.   Sear  357 

'-- —  V.  Williams  188 

Mills  v.Lyne  180 

Millward  v.  Temple        105,  400, 

474 
Millward  V.  Walter  192 

Minton's  case  207 


Page 

Mitchell  V.  Tarbutt  210 

Mohun's  (Lord)  case  235 

Moises  V.  Thornton  228,386 

Molony  v.  Gibbons  354 

Molton  q.  t.  V.  Harris  218 

Monke  v.  Butler  195 

Mourse  v.  Twistleton  83 

Montgomcrie  v.  Clark  389 

Moodie  V.  Reed  470 

Moody  V.  Thurston  357,  428 

V.  King  74 

Moor  V.  Adam  7 

V.  Rawson  163 

V.  Foley  547 

Morish  v.  Foote  50,  1 31 

Morewood  v.  Wood  248,  249, 

251,  257,  492 

Morgan's  case  22,  23 

V.  Bissel  527 

V.  Bridges  274 

V.   Edwards  212,216     • 

xMorley's  (Lord)   case  369,372 

Morris  v.  Burdett  107 

Morrison  v,  Kelly  426 

Morton's  case  520 

Moseley  v.  Davy  250 

Moses  v.  Macfarlan  357 

Mosey's  case  116 

Mostyn  v.  Fabrigas  15 

Motteux  v.  Lond.  Ass.  Comp. 

576 

Moulin  v.  Dalison  173 

Mountstephen  v.  Brook  208 

Murray  v.  Thornhill  429 

Munn  v.  Godbold  452,  519 

Mytton  v.  Harris  420 


N 


Neal  V.  Duke  of  Athol  328 

v.  Irving  104 

Nedham's  case  341 

Nelson  v.  Whittal  466,  475 

Newberg  v.  Newberg  252 

Newland's  case  122,  224 

Newsome  v.  Coles  408 

NichoUs  v.  Dowding  92,  269 

V.  Parker    242,  249,  250 

Nightingale   v.  Dervisme         395 

Nix  V.  Cutting  49 

Noble  V.  Kennoway  173,  556 

Nodin  V.  Murray  446 


TA13LK  OF  THE  CASES  CITED. 


Noel  V.  Wells 
Nordon  v.  Williamson 
Norris  v.  Mill 
Nortli  V.  Miles 

O 


Page 

343 

72 

142 

106 


Gates  (Titus)  c.ise  of  4C6 

Oddy  V.  Bovil  349 

Ogilvie  V.  Foljambe  5G0 

Ogle  V.  Cook  497 

V.  Paleski  365 

Oldham  v.  Litchford  577 

Oldroyd's  case  310,371 

Olive  V.  Gwin  385,  463 

Omerod  v.  Hardman  570 
Oniichund  v.  Barker  22,  23,  382 

Orford  V.  Cole  525 

Orr  V.  Morrice  450,  483 

Osborne  v.  Taylor  438 

Outhvvaite  v.  Luntley  512 

Outrara  V.  Morewood  251,253, 
260,  322,  324 


Page  V.  Crook  74 

V.  Leapingwell  543 

Pain  V.  Bustin  458 

's  case  369 

Paleihorp  v.  Furnish  86,  99 

Palraer  v.  Lord  Aylesbury     364, 

396 
Palmerston's  (Lord)  case  231 
Parham  v.  Raynal  93 

Park  V.  Mears  446 

Parker  v.  Palmer  208,  209 

V.  Hoskins  473,  474 

V.  Staniland  530 

Parkins  v.  Hawkshaw    144,  146, 

466 
Parkingson  v.  Collier  558 

Parkyn's  (Sir  W.)  case  154,  407 
Parkhurst  v.  Lowtan  140,  276 
Parr's  case  122 

Parris's  case  120 

Parsous  v.  Bellamy  260 

V.  Parsons  532 

Pateriche  v.  Powlet  559,  562 
Patridge  v.  Coates  440 

Patram's  case  40 

Patrick's  (Dr.)  case  356 


Peacock  v.  Monk 

V.  Harris 

Pearce  v.  Hooper 
Pearson  v.  lias 
Pederson  v.  Stoffles 
Pember  v.  Mathers 
Pendock  v.  Mackinder 

Pendrel  v.  Pendrel 
Penny  v.  Porter 
Pepiet  V.  Jones 
Peppin  V.  Soloman 
Perigal  v.  Nicholson 

Peto  V.  Hague 

Petre  (Lord)  V.   Blencoe 

Phillips  V.  Bacon 

V.  Bury 

V.  Earner 

-— V.  Shaw 

V.  Hunter 

Phillipson  v.  Chase 
Phillips  V.  Duke  of  Bucking- 
ham 
Phipps  V.  Parker 
V.  Pitcher 


Page 

550 

227 

449,  483 

7,8 

54 

154,  571 

28,  30, 

494 

240 

208 

73 

206 

131,260, 

267 

99 

543 

214 

356 

274 

214 

352 

446 


Pickering  v.  Noyes 

V.  Rudd 

Pickford  v.  Gutch 
Picton's  (Gen.)  case 

Piercy  v.  

■ — 's  case 

Piesly  V.  Von  Esch 


401 


69 
475 
52,  495 
438 
171 
2^8 
402, 
407 
366 
423 

59 


Pike'v.  Crouch  65,  230,  325 
V.  Badmerins  309,  502 
412 
565 
263 
212 


Pirie  v.  Anderson 
Pitcairne  v.  Ogbourne 
Pitman  V.  Madox 
Pitt  V.  Green 

V.  Knight  385 

Pitton  V.  Walter     231,389,421 


Plumoner  v.  Woodburn 
Plunkett  V.  Cobbett 
Pollard  V.   Bell 
Pomery  v.  Baddely 
Pomfret  (Lord)  v.  Smith 
Pool  V.  Court 
V.  Eently 


Pope  V.  Skinner 
Portman  v.  Okeden 
Portmore  v.  Morris 


350 

288 
349 
268 
253 
208 
527 
202 
128 
559,  570 


xlit 


TABLE  OF  THE  CASES  CITED. 


Potts  V.  Durant 
Powell  V.  Blacked 

V.  Cleaver 

— V.  Edmonds 


V.  Ilord 
V.  Lay  ton 
V.  Mil  bank 
V.  Ward 


Presion  v.   Mercenu 
Preston's  (Lord)  case 
Price  V.  Dyer 
V.  Fletcher 


Pngo 

4lO,  4-20,  480 

408 

502 

510,  559, 

560 

59 

210 

195 

26 

559 

485,  486 

566 

212 


Rindall  v.  Lyncli 
V.   Randall 


V.  Littlewood  251,257,414 
V.  Lord  Torritigtoii  263 
V.  Page 


s  case 

Priddle's  case 
Prideaux  v.  Collier 
Prince  v.  Blackburn 
Pritt  V.  Fairclough 
Prudham  v.  Phillips 
Purcell  V.  Macnamara 
Purchase's  case 
Putt  V.  Roster 
Pye's  case 

a 


538 

40 

30 

99 

47a  474 

459 

346 

214 

98 

333 

207 


Page 

188,  4(55 

577 

no 

481 
30,44- 
107 
564 
438 
I4t 
334,381 

74 
555 
399 
457 
526 

7* 
520- 


Queen  (proceedings  against 

the)  103 

V.  Muscot  151 

€luelch'3  case  407 


R 

Radbourne's  case 
Radford  q.  t.  v.  Mackintosh 
Radnor  (Earl  of)  v.  Reeve 
Ranibert  v.  Cohen 
Ramsay's  case 
Ramsbottom  v.  Brewer 

— V.  Buckhurst 

•  —  V.  Gosden 

V.  Mortley       504, 

— V.  Tunbridge 

Ramsbottom's  case 
Ramstrom  v.  Bell 
Rancliffe  (Lord)  v.  Parkyns 

Randall  v.  Gurney 


371 
227 
357 
505 
84 
188 
390 
569 
525 
221, 
525 
398 
513 
501, 
503 
4 


Randle  v.  Blackburn 
Randolph  v.  Gordon 
Rands  v.  Thomas 
Rankin  v.  Horner 
Rann  v.  Hughes 
Ratcliffe  V.  Biensby 
Ratcliffe's  (Dr.)  case 
Ravee  v.  Farmer 
Raven  v.  Dunning 
Rawson  v.  AValker 
Ray  V.  Clarke 
Read  v.  Brookman 
Reardon  v.  Swabey 
Reason  v.  Ewbunk 
Reculist's  case 
Reed  (the  King  in  aid  of)  v. 

Hopper  387,  464 

V.Jackson      2ol,3l6,328 

V.  James  274,  436' 

V.  Passer  411 

Rees  V.  Abbot  210 

V.  Mansell  478 

V.  Smith  194 

Reid  V.  Margison  386 

Reilly's  case  35 

Rescous  V.  Williams  137 

Reasse  v.  Meyers  412 

Rex  V.  Abergwilly  241,  376 

V.  Aides  414,  416 

V.  Allison  410 

V.  All-Saints,  Worces 

ter 


Appleby 
Austrey 
Babb 
Badby 
Baldwin 
Ball 
Barker 
Barnes 
Bah- 
Bedeli 
Bellamy 
Bellringer 
Benson' 
Bentley 


V.  Bickley 

V.  Blaney 

V.  Boston 


79 

116 

471 

431,433,434 

331 
179 
427 
397 
164 
87 
^13 
541 
394 
330^ 
375^ 

55. 
120,  121,339 


TABLE  OF  THE  CASES  CITED. 


xlv 


Rex  V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 


Bowler 
Bramley 
Bray  40 

Bridijinati  (Dr  ) 
Brook 
Broughton 
Brown 
Bunting 
Burbage 
Burdeti 
Burley 
Buttery 


Page 
375 
87,  240 
■>0,  51 
432 
274 
120 
161 
121 
5 
175,213 
111 
345 
Cadogan  (Earl  of)       432 
Carpenter      66,  71,  126, 
127,  230 
Carr  359 

fastle  Careinion  30 

Castle  Morton  504 

Castleton  452,456 

Cator  493 

Catteral  330 

Chadderton  241 

Chester  (Bp  )  523,  524 
Chester  (Mayor  of)  541 
Clarke  176,  233 

203 

Claviger  77,  79,  80 

Cole  ]8] 

Combs  195 

Cominissioners  of 
Land  Tax  424,  428 


Corden 

Cornelius 

Corsham 

Cotton 

Creswell 

Crossiey 

Crowther 


196 
434 
330 
246,  380 
226 
29,414 
369 


Culpepper  (Sir  T.)    452 

Dal  by  120 

Davis  30,  128 

Debenham  254,  422 

Deborah  231 

Dingier  369 

.  Ditchingham  527 

Dixon  142 

Doherty  85 

Doran  218 

Dowling  217 

—  V.  Eardisland  332 

—  V.  East  Knoyle  623 

—  V.  Eden  120 
Vol.  I.  T 


Pago 
Rex  V.  Edwards  j  12,  283 
V.  Elkins  c9l 

V.  Ellis  120,  179 

V.  Eriswell      252,  373,  376 

V.  Erith  241 

V.  Ferry  Fristone  241,  376 

V.  Fletcher  74 

V.  Ford  2S,  30,  35 

V.  Fox  139 

V.  Fraternity  of  Host- 

man  in  Newcastle    431 


—  V.  Frederick 

—  V.  Gardner 

—  V.  Gibson 

—  V.  Gilham 

—  V.  Gilson 

—  V.  Gisburn 
■ —  V.  Glossop. 

—  V.  Grant 

—  V.  Gray 

—  V.  Green 
V.  Greepe 

—  V.  Grimes 

—  V.  Grim  wood 

—  V.  Gruuden 

—  V,  Gwyn 
V.  Haines 

—  V.  Hall 

—  V.  Hard  wick 

—  V.  Harrinsworlh 


V.  Haslingfield 

V.  Hathaway 

V.   Hawkins 

V.  Haynes 

V.  Hebden 

V.  Hensey 

V.  Heydnn 

V    Higgins 

—  V.  Holland 

V.  Hollister 

V.  Holt 

V.  Hopper 

V.  Hough 

V.  Howe 

V.  Hube 

V.  Hughes 

V.  Hunt 


81 

26,  226,  408 

345 

213 

522 

133 

216 

29 

47,  52 

26 

35 

325,  326 

415 

357 

425 

396,  424 

522 

90,91,  111 

465 

401 

232 

195 

397 

215,  326,  328 

485 


432 
312 

427 

434 

407 

316 

179 

293 

219 

415 

180,  181,203, 

221.443 

V.  Hutchinson  237 

V.  Johnson  ('Mr.  Justice) 

454,  488 
V.  Johnson  126 


zlri 


TABLE  OF  THE  CASES  CITED. 


Rex  V.  Jones 

V.  Joliffe 

V.  Kea 

V.  Keiiiiworth 

V.  King 

V.  Kirdford 

V.  Knaptoft 

V.  Lafone 

V.   I.aindon 

V.  Lambert 

V.  Lee 

V.  Leefe 

V.  Lewis 

V.  Lingate 

■ V.  Lloyd 

• V.  Locker 


Page 

15,41,  4G5 

231 

87,241 

330 

424 

127 

329 

74 

562 

183 

432 

213,  214 

281,  2S2 

112 

164 

81 


V.  London  (Mayor,  &,c. 

of)  66 

V.  Long  Bucby  523 


V.  Lookup 
V.  Lucas 
V.  Luckup 
V.  Luffe 


213,  214 

439,  435 
126 
87,  158,  241 
120 
196 
552 
414 

236,  432  ; 
114 

448,  465 
427 


V.  Macartney 

V.  Malinson 

V.  Maltingley 

V.  Martin 

V.  Mead 

V.  Merceron 

V.  Middlezoy 

V.  Midlam 

V.  Millard 

V.  Moors 

V.  Morphew 

V.  Morris 

V.  Morton 

V.  Motherse 

V.  Mott 

V.  Netherthong 

V.  Northamptonshire 

(Justices  of) 

V.  North  Petherton 

V.  Nuneham  Courtney  241, 

376 
— —  V.  Nunez 

V.  Nutt 

V.  Olney 

V.  Osbourne 

V.  Page 

V.  Paget  (Lord) 


179 
442 
367 
394 
456 
423 
135 
483 

170 

410 


50,  120 
312 
552 
541 
389 
312 
V.  Payne  214,  369,  370 
V.  Peacock  135  | 

V.  PearcG  524 


Page 

Rex  T.  Pemberton  319 

V.  Pendleton  519 

V.  Perry  84 

V.  Phipps  129 

V.  Piercy  125 

V.  Pippet  214 

V.  Pooley  520 

V.  Preston  312 

V.  Prosser  65 

V.  Purefoy  373 

V.  Purnell  432 

V.  Ravenstone  377 

V.  Reading  87,  241 

V.  Reason  235,  237 

V.  Reeks  509,  510 

V.  Ring  8 

V.  Ripon,  (Mayor,  &c. 


of) 
V.  Risup 
V.  Roberts 
V.  Roddam 

Rogers 

Rook 

Rosier 

Row 

Rowland 

Rowley 
V.  Ryton 
V.  St.  Albans 
V.  St.  George 


136 

330,  331 

180 

5 

196 

87 
112 
111 

40,  70 
179 

483 
541 
320 

V.  St.  Mary's,  Lambeth  330 
V.  St.  Mary  Magdalene  69 
V.  St.  Mary's,  Notting- 
ham 276 
V.  St.  Pancras  328,  331,340 
V  St  Paul's  Bedford  504, 
527 
V.  St.  Peter's 
V.  Sepulchre 

Sarratt 

Scammonden 

Scott 

Serjeant 

Shacklington 

Shaw 

Shelly 

Shearman 

Smith 


87 

456 

329,  330 

551 

541 

77,  84 

26 

317,  384 

430,  434 

24 

142,  312,  331 

369,  370,  428 

V.  Smith  and  Homage  114 

V.  Sparkes  144 

V.  Stoke  Gelding  453 


TABLE  OF  THE  CASES  CITED. 


xlvii 


Page 
Rex  V.  Stone    95, '125,  198,  287 

V.  Stratford  upon  Avon 

(Mayor  of)  .'54! 

V.  Stratton  312 

V.  Surry  (Justices  of)     434 


V.Sutton  318,407 

V.Taylor  24,213 

V.  Teale  30,  43 

V.  Teasdale  120 

V.  Telicoie  1 15 

V.  Thornton  370 

V.Tilly  125 

V.  Tooke  285 

V.  Tower  435 

V.  Tounseiid  332 

V.  Travers  19 

V.  Treble  135 

V.  Tucker  20 

V.  Turner  26  109 

V.  Vandercomb  178 

V.  Varlo  541 

V.  Vereist  226 

V.  Vipont  369 

V.  Vyse  3^1 

V.  Wade  19 

V.  Wait  123 

V.  Walker  285 

V.  Warden  of  the  Fleet  35, 

326 

V.  Warley  377 

V.  Warminster  377 

V.  Watson       1*8,-287,  291 

V.  Wheelock  330 

V.  White  1 1 1 

V.  Whiting  50,  120 

V.  Whitley  91,  129 

V.  Williams  203 

V.  Wilson  1 14 

V.  Withers  140.407 


V.  Woburn  72,91,  129,278 

V.  Worsingham  432 

V.  Wych  26 

V.  Wylie  179 

V.  York  (Mayor  of)         325 

V.  Young  135 

Reyner  v.  Pearson  100 

Rhind  v.  Wilkinson  219 

Rhode's  case  121,413 

Rhodes  v.  Ainsworth        58,  128 
Ribbans  v.  Crickett  189 

Rice  V.  Shule  2  0 

Rich  V.  Jackson  551,559,567,577 


Page 
Richardson  v.  Allen  309 

V.  Anderson  402 

V.  Disbrow  155 

V.  Edmonds  545 

V.  Mellish  415 

Rickets  v.  Salway  211 

Rickman's  case  170 

Ridley  V   Taylor  61,  68 

Ridsdale  v.  Sheddon  514 

Right  deiii.  Cater  v.  Price  497 
Rippener  v.  Wright  504 

Rivers  v.  Grifiitiis  202 

Rivers  v.  Garvan  350 

Roberts  v.  Bradshaw      445,  459 

v.  Eddingion  381 

v.  Fortune  355 

V.  Herbert  201 

Robertson  V  French  161,412,557 
Robinson  v.  Drybrough  506 

V.  Smyth  17 

V.  Tobin  516 

V.  Touray       516,518 

Robinson's  case  178,  323,  334 
Robson  V.  Hall  525 
V.  Kemp 


Roche  V.  Campbell 
Rocher  v.  Busiier 
Rociie's  case 
Roderick  v.  Hovil 
Roe  V.  Aylmer 

V.  Davis 

V.  Ferrars 

v.  Hasland 

v.  Jeffery 

V.  Parker 

V.  Rawlins 

Rogers  v.  Allen 
V.  Brooks 


146 
208 
66 
350 
523 

430,  433 
443 
360 
197 
418 
418 
257 

211,253 


164 

Rogerson  v.  Whittington  70 

Rolf  V.  Dart  3.-:6 

Rook  wood's  case       35,  36,  291, 

292 
Roscoe,  ex  parte  6 

Ross  V    Hunter  194 

Rothroe  v.  Elton  56 

Roulston  v.  Clark  212 

Rowntree  v.  Jacob  '       549 

Rowson  v.  Walker  555 

Rudd's  case  37,  38,  54,  129 

Ruddirig  V.  Newell  173 

Rugby  Charity  (Trustees  of) 
V.  Merry  weather  1G4 


TABLE  OF  THE  CASES  CITED 


Page  j 
Rushworlh  v.    Cotintess   of 

Pembroke  325,  327,  364 

Russell's  case  121 

(Lord)  case  18-1 

Rustou's  case  H^  21 

Rutland's  (Countess  ofj  case  548 

S 


St.  George  and  St   Margaret, 
Parishes  159, 

St.     Catherine's     Hospital, 
case  of, 

St.  Leger  v.  Adams    ^^   344, 

Saloucci  V.  Woodmas 

Sake  V.  Thomas 

Salter  v.  Turner 

Samuel  v.  Evans 

Sanderson  v.  Symonds 

Sandford  v.  Raikes 

Sands  v.  Ledger 

Sandwell  v.  Sandwell 

Sangster  v.  Mazarredo 

Sarum  (Earl)  v.  Spencer 

Saunders  v.  Pitman 

Saville  v.  Roberts 

Sawtell  V.  Loudon 

Saxby  v.  Kirkns 

Say  and  Sele's   (Lord)  case 
140, 

Sayer  v.  Kitchen 

Schinnotli  v.  Bumstead 
Scholey  v.  Goodman 


Scott  V.  Clare  219, 

V.  Jones  419, 

V.  Lifford 

V.  Shearman 

V.  Waithman  451, 

Seare  v.  Lord  Barrington 

V.  Williams 

Seddon  v.  Tutop 

Selby  V.  Hairis 

Sells  V.  Hoare 

Sehvood  v.  INIildmay       533, 

Senior  v.  Armitage 

Sergerson  v   Sealy 

Serle  v.^Serle 

Severn  v.  Olive 

Seven  Bishops'  case 

Sharp  V.  Scoging 

Shaw  V.  Markham 

Sheer's  (Sir  G.)  case 


197 

423 
396 
3J8 
414 
393 
318 
515 
547 
2  2 
289 
92 
378 
16i 
29 
518 
3!8 

146 
441 

428 

81 
229 
442 
134 
354 
483 
257 

32 
334 
388 

24 
543 
554 
375 

67 
7 
489 
291 
446 
501 


Page 
Sheldon  v.  VVhitaker  213 

Shelling  v.  Farmer  429 

Shepherd  v.  Shorthouse  397 

Shepard  v.  Giisnold  541 

Sheroold  v.  Boone  577 

Sheridan's  case  371 

Sliires  v   Glascock  500 

Short  v.  Edwards  191 

V.  Lee  255,256,259,  261, 

422 
Shotter  v.  Friend  151,  155 

Shuttleworth  v.  Stevens  67 

Sibley  v.  Cuming  320 

Sideways  v.  Dyson  441 

Sidgworth  v.  Overend  210 

Sidney's  (Algernon)  case  97,  485 


Sikes  V.  Marshall 
Simons  v.  Smith 
Simpson  v.  Smith 
Sinclair  v.  Fraser 
Sinizenick  v.  Lucas 
Skaile  v.  Jackson 
Skinner  v.  Stocks 
Skipp  V.  Harwood 
Skipwith  V.  Shirley 
Skrine  v.  Elmore 
Slack  V.  Buchanan 
Slade's  case 
Sloman  v.  Heme 
Sloper  V.  Allen 
Smalt  V.  Whitmill 
Smartle  v.  Williams 
Smith  V.  Beadnall 

v.Blackham 

V.  Blandy 

V.  Cator 

V.  Coney 

V.  Davies 

V.   Doe  dem. 


Jersey 


266 

134 

274 

350,  351 

335 

108 

49 

26 

457 

528 

109 

333 

140 

211 

4 

461,  462 

69 

65 

110 

528 

532 

430 

Earl   of 

544,  545 


v.  Duke  of  Northum- 


berland 438 

. V.  Evans  498 

V.  Fuge  411 

V.  Harris  50 

V.  Lyon  92 

V   Prager  51,  55,  123 

V.  Rummens  121,339 

V.Taylor  227,228 

V.  Veale  365 

V.  Woodward  458 

V.  Young      1 10,  220,  446 

Smith's  case  1 17,  154 


TABLE  OF  THE  CASES  CITED. 


xlix 


Page 
Smith  V.  Mingay  606 

Snead  v.  Robinson  L»4l 

Snow  V.  Phillipps  58 

Somerset  (Duke  of^  v.  France 

173,  174 
Southampton's  (Lord)  case  98 
Southampton  (Mayor  of;  v. 

Graves  431 

Sparry's  case  333 

Sparin  v.   Drax  360 

Spence  v.  Stuart  5 

Spenceley  v.  De  Willot    1 72,  272 

. V.  Schullenberg         146 

Spencer  v.  Golding  129 

Spieres  v.  Parlier  198 

Sponsonby's  case  122 

Spy  bey  v.  Hyde  202 

Squire  v.  Hunt  208,  209 

Stafford's  (Lord;  case      9J,  158, 

371 
Stafford  v.  Clark  322,  335 

Stainer  v.  Burgesses  of  Droit- 

vvich  423 

Stammers  v.  Dixon  5^.3 

Standen  v.  Standen  545 

Stanley  v.   White  174,  258 

Staples  V.  Okines  67 

Stapleton  v.  Staplelon  241 

Stead  V.  Heaton  255 

Stephens  v.  Crichton  15 

Stephen  v.  Moss      241,  242,244 

V.  Pinney  221 

Stevenson   v.  Healhcote  548 

Stocfleth  V.  De  Tastet  89 

Sioddart  v.  Pahiicr  COG,  2l4 

Stone  V.  Bale  553 

V.  r.lackbiirn  267 

V.  Forsyth  397 

Stone's  case  94,  95 

Stonehouse  v,   Evelyn  499 

Stoveld  V.  Brewin  187 

Strafford's  (Lord)  ca.-<e  288 

Stranger  v.  Searle  485,   493 

Strangroom   v.    Marquis  of 

Townsend  576 

Stralton  v.  Rastell  108 

Street  v.  Brown  438 

Strolher  v.  Willan  411 

Strong  V.  Rule  208 

Stump  V.  Ayliff  404 

Surtees  v.  Hubbard  445 

Sussex  (Earl  of;  v.  Temple      361 


Page 
Sutton  V.  Bishop  30,  320 

V.  Buck  160 

V.  Coldfield,  Corp.  of, 

V.  Wilson  71 

Swallow  V.  Beaumont  212 

Swan's  case  20  3 

Swendson's  case  84 

Swinnerton  v.    Marquis  of 

Stafford  479 

Swire  v.  Bell  473,   476 

Sydenham  v.^  Rand  4 

Sykes  v.  Dunbar  289 

Symmons  V.  Knox  213 


Talbot  V.  Hodson 

V.  Villeboys 

Tanner  v.  Taylor 
Taplin  V.  Atty 
Tarleton  v.  Tarleton 
Taylor  v.  Cooke 

V.  Cole 


V.  Hague 

V.  Hooman 

V.  Jones 

V.  Royal  Exch. 

Company 

V.  Scott 

Taylor's  case 
Teed  v.  Elworthy 

V.  Martin 

Tellard  v.  Shebbeare 


475,  476 
430 
289 
441 

352,  354 
493 
359 
507 
216 
461 


Ass. 


15 
26 
121 
210 
411 
252 
60 
212 
527 
355 


Temins  v.  Smith 
Tempany  v.  Bernard 
Tempest  v.  Rawlins 
Terry  v    Hutchinson 
Tewkesbury   (Bailiff,  &.c.  ofj 

V.  Bricknell        '  211,  541 

Thaire  v.  Thaire  472 

Thanet  (Lord)  v.  Paterson     393 
Thelluson  v.  Cosling  407 

Theobald  v.  Tregott 
Thomas's  case 
Thomas  v.  Foyle 

V.  Eraser 

V.  Thomas 


lii), 


Thompson's  case 
Thompson  v.  Donaldson 

V.  Smith 

V.  Trevanion 


129 
115 
412- 
576 
108,  536 
111 
334 
346 
232 


TABLE  OF  THE  CASES  CITED. 


Thornton's  case 
Thornton  v.  Jones 

V,  Lyster 

V.  Roy.  Ex.  Ar^s. 

Company 
Thoroughgood's  case 
Threlfall  v.  Webster 


Page 
111 
209 
215 

290 
4GS 
433 


Trockmorton's  (Sir  N.)  case  1  15 
Throgmorton  v.  Walton  197 

Thurle  v.  Madison  461 

Thurston  v.  Slatford        311,  387 
Thwaites  v.  Richardson  93 

Thynne  v.  Protheroe  524 

Tiley  V.  Cowling  88 

Tilley's  case  364 

Tillotson,  ex  parte  5 

Tinckler's  case  235 

Tinckler  V.  Walpole  411 

Tinney  v.  Tinney  548 

Tippet's  case  1 1 1 

Tisdale  v.  Sir  W.  Essex  527 

Title  V.   Grevet  276 

Tonge's  case  39,  1 15 

Tooke's  (H.)  case  17-3 

Tooker  v.  Duke  of  Beaufort  375, 

3S5 
Toole  V.  Medlir.ott 
Totty  V.   Nesbitt 
Towers  v.  Moor 
V.  Sir  J.  Osborne 


Towle's  case 
Townend  v.  Downing 
Townley's  case 
Townsend  v.  Ives 

(Marq.    oQ 

Strangrooin 
Travis  v.  Chaloner 
Treble's  case 
Trelawney  v.  Thomas, 

v.  Coleman 

Tremaine  v.  Faith 
Trevivan  v.  Lawrence, 
Trowel  v.  Castle 
Tucker  v.   Cracklin 
Tuckey  v.  Flower 
Tuffnell  V.  Page 
Turner  v.  Gethin 

v.  Pearte 

Tyler  v.  Duke  of  Leeds 
Tyrwhiit  v.  Wynne 
Ty\et  V.  Dalrymple 


154 
457 

540 
529 
204 
62 
215 
497 

v. 

576 

325,  361 

122 

54,  62 

82 

7 

320 

392 

208 

424 

494 

429 

131,267 
105 
175 
534 


Page 

Uhde  V.  Wallers  555,  556 

Uncle  V.   Watson  258 

Underbill  v.  Durham  405 

Upton  V.  Curtis  64 

Usher's  case  122 


Vaillainl  v.  Dodemead  144,  147 

Vallance  v.  Dewer  556 

Vandercomb  v.    Abbott  426 

Vane's  (Sir  H.)  case  312 

(Lord)  92 

Van  Wort  v.  Wolley  106 

Vaughan's  case  178,  457 

Vaughan  v.  I'arnes  187 

Venning  v.  Leckie  528 

Vernon's  case  549 

Vicary's  case  92 

Ville  de  Varsovie,  case  of  28,  '^9 

Villers  V.  Beaumont  549,  550 

Villiers  v.  Villiers  457 

Viney  v.  Barres  171 

Voooht  V.  Winch  320,  335 

Vowels  V.  Young  238,  240 

W 


Waddington  v.  Bristow 

V.  Francis 

Wade  V.  Beaseley 
V.  Broughton 


529 

511 
190 

488 

Wadley  v.  Buliss  257,  543 

Wadsworth  v.    Ilainshaw         143 


VVagstaffv.    Wagstaff 
Wain  v.  Wallers 
Wakefield's  case 
Waldridge  v.  Kennison 
Waldron  v.  Coombe 
Walker's  case 
Walker  v.  Kearney 
Walker  v.  Walker, 
V.  Witter 


Wallace  v.  Cook 
Waller  v  Horsefall 
Wallis's    ase 
Wallis  V.  Delancy 
Walpole  (Ld  )  v.  Cholmon 

deley  636 


494 
559 
4 
109 
381 
182 
28.29 

497,  574 
351 
413 

457,519 
204 

473,  474 


TABLE  OF  THE  CASES  CITED. 


Page 
Walter  t.  Holman  260 

Walton  V.  Hastings  512 

^ V.  Hobbs  154 

V.  Shelley  .     43,  46 

Ward  V.  Apprice  438 

V.  Bourne  73 

V.   Heydon  75 

V.   Shepherd  163 

V.  Wells  367,  473 

V.  Wilkinson  49,  327 

Wardell  v.  Fermor  473,  474 

Wardel's  case  207 

Warneford  v.  Warneford  498 

Warren  v.  Greiiville  255 

V.  Stagij  560 

Warrener  v.  Giles  428 

Warrington  v.  Ferbor  528 

Warwick's  (Loril)  case     32,    35 
Warwick  v.  Bruce  5i0 

Warrickhall's  case  111,  116 

Watkins  v.   Hewlett  526 

V.  Towers  188 

V.  Vince  104,  528 

W  atson's  case      95,  96,  97,  22 1 , 

283,  285,  289,  292 


Watson  V.  King 
Watt's  case 
Watts  V.  Thorpe 
Waugli  V,   Russel 
Weall  V.  King 
Webb  V.  Pelts 

V.  Plunier 

— ^^ V.  Smith 

Webber  v.  Maddocks 
Weeks  v.  Maillurdet 


171 

121,  123.   124 

266 

212 

208 
251 
554 

89 
516 
212 

V.  Sparke  248,  249,  252 

Weir  V.  Aberdeen  515 

Welborne's  case  235 

Welch  V.  Richards  428 

Weld  V.   Hornby  541 

Welland  v.  Moss  508 

Welier  v.  Foundling  Hospi- 
tal 70 
Well's  case  122 
Westbeech  v.  Kennedy  499 
Westbeer's  case  36,  369 
West  V.  Andrews  21 1 
West's  (Dr.)     case  38,  277,  481 , 

Weston  V   Ernes  555 

Wetherston  v.  Edington  448 

Wharum  v.  Routledge  441 


534, 


Will 
Will 
Will 
Will 
Will 


Page 
333 
451 
392 
Hi 
436 
335 

93 
21,  111 

85 
553 
208,  556 
105 
411 
238 
208 
520 
528 
356 
553 
410 

40 
208 
529 
195, 
219 

87 
262 
101 
143 
171 
365 

V.  Yonnghusband  456 

amson  v.   Allison  206 

nsham  v.   Matthews  5 


Whaiely  v.  Menheim 
Wheeler  v    Atkins 

V.  Lowth 

Wheeling's  case 
Whitaker  v.  Izod 
Whilbread  v.   May 
Whitcomb  v.  Whiting 
White's  case 
White  V.  Cuyler 

V.  Sayer 

V.  Wilson 

Whitehead  v.  Tucket 

V.  Wynne 

Whitelock  v.  Baker 
Whitwell  V.   Bennet 

V.  Dimsdale 

Whitworth  v,  Crockett 
Widriugton's  case 
Wigglesworth  v.   Dallison 
Wihen  v.  Law 
Wilde's  case 
Wildman  v.  Glossop 
Wilks  V.  Atkinson 
Williams  v.  E.  I.  Company 


V.  Johnson 
V.  Jones 
V.  Innes 
V.  Mundie 
V.  Sills      • 
V.   Williams 


s  V.   Peckham 

s's  case 

son  V.  Clerk, 

—  V.  Gilbert 

—  V.  Hodges 

—  V.  Hart 

—  V.  Rastell 

—  V.  Rogers 

—  V.  Turner 
V.  Vysar 


140, 


Wiltzie  V.  Adamson 
V/inch  V.  Winchester 
Winsmore  v.  Greenbank 
Wishaw  V.  Barnes 
Whitnell  v.  Gartham 
Wood  V.  Braddick 

V.  Drury 

V.  Strickland 


7 
117,  118 
216 
215 
197 
561 
144,  145 
428 
102 
506 
256 
560,  569 
81,82 
49 
251,542 
93,  362 
473 
442 


Hi 


TABLE  OF  THE  CASES  CITED. 


Page  . 
Wood  V,  Veale  166 

Woodbridge  v.  Spooner  555 

Woodcock's  case      85,  235,  309 
Woodcraft  v.  Kynaston  385 

Woodford  V.    Ashley  213 

Wood n as  v.  Mason  386 

Woodnorth  v.  Lord  Cobhani 

260,  261 
Woodward's  case  K)0 

Woodyer  v.  Iladdon  164 

Woolam  V.  Hearn  569,  573 

WooUet  V.  Roberts  358 

Wolley  V.   Brownhil!  259 

Worsley  v.  Filisker  315 

Wright  V.  Barlow  469 

, V.  Litter  236 

V.   Pindar  314 

.   -J .-- —  V.  Paulin  73 

V,  Sbarpe  313 

. V.  Wakeford       469,  470 

Wright's  c^sQ  390 


Page 
362 

287 
362 
133, 
495 

Wynne  (Sir  W.  W.)  v.  Tyr- 
whitt  477 


Wrottesly  v,  Bendish 
Wyat  V.  Gore 
Wych  V.  Meal 
Wyndham»v.  Chetwynd 


Yabesley  v.  Doble 
Yarley  v.  Turnoek 
Yate  V.  Leigh 
Yeates  v.  Pirn 
Yewin's  case 
York  V.   Blott 
Young  V.  Bairnes 
-r.^-,,—^ —  V.  Lynch 
V.  Smith 


106 

211 

259 

558 

273 

67 

60 

431 

91 


V.  Wright  102,  105,  2Q5, 
466 


TREATISE 


ON    THE 


LiA"W  OF  EVIBENCE. 


BOOK  THE  FIRST. 


The  arrangement,  which  has  been  adopted  in  the  following  Plan  of  iha 
treatise,  is  that  which  appeared  the  most  simple  and  perspicuous.  ^^°^^' 
In  the  first  volume,  the  subject  of  evidence  is  considered  chiefly 
with  reference  to  its  general  nature,  and  the  general  principles  on 
whicl*  it  is  admitted  in  our  courts  of  justice.  This  volume  consists 
of  two  parts:  the  one  relating  principally  to  parol  or  unwritten 
evidence,  the  other  to  written  evidence.  The  second  volume  treats 
of  evidence  more  in  detail,  with  reference  to  particular  kinds  of  ac- 
tion an.d  forms  of  pleading. 

The  first  question  which  occurs,  in  entering  on  the  subject  of 
evidence,  relates  to  the  method  of  enforcing  the  attendance  of  wit- 
nesses at  the  trial  of  a  cause.     This  is  treated  of  in  the  first  chapter. 

If  a  witness  attends,  and  is  ready  to  give  evidence,  the  question 
next  in  order  is,  whether  his  testimony  can  be  admitted,  or  whether 
there  is  any  objection  to  his  competence?  Objections  to  the  com- 
petency of  witnesses  are  of  four  kinds.  The  first  ground  of  incom- 
petence is  want  of  reason  or  understanding:  a  second  ground  is 
defect  of  religious  principle:  a  third  ground  arises  from  conviction 
of  certain  crimes:  the  fourth  and  most  common  cause  of  incompe- 
tency is  interest. 

VOL.     I.  I 


Of  the  Attendance  of  Witnesses.  [Ch.   1. 

These  several  grounds  of  objection  are  the  subjects  of  the  sec- 
ond, third,  fourth,  and  fifth  chapters. 

Besides  the  objections  above  mentioned,  there  is  one  other,  of  a 
more  partial  and  limited  kind,  which  is  founded  on  the  professional 
relation  between  attorney  and  client-  The  extent  and  privilege  of 
this  professional  confidence  are   considered  in   the  sixth  chapter. 

After  ascertaining  whether  a  witness  is  competent  to  give  evi- 
dence, the  next  question  will  be,  what  evidence  ought  to  be  given, 
and  how  the  witness  ought  to  be  examined?  The  seventh  chapter, 
therefore,  treats  of  the  principal  general  rules  of  evidence,  and  of  the 
general  nature  of  proofs;  and  the  eighth  treats  of  the  regular  mode 
of  examination.  The  first  part  of  the  present  volume  concludes 
with  an  inquiry  into  bills  of  exception  and  demurrers  to  evidence. 

The  second  part,  which  relates  to  written  evidence,  treats  of 
records,  of  the  admissibility  of  verdicts,  judgments,  and  other  judi- 
cial proceedings,  and  of  the  manner  in  which  they  are  to  be  regu- 
larly proved.  Public  writings,  not  of  a  judicial  nature,  and  the  in- 
spection of  such  writings,  are  next  considered;  after  which  follows 
an  inquiry  into  the  proof  of  private  writings,  the  requisite  of  stamps 
on  written  instruments,  and,  lastly,  into  the  admissibility  of  parol 
evidence,  by  which  written  instruments  may  be  explained  or  varied. 


PART    THE    FIRST. 


CHAPTER  L 


Of  the  Attendance  of  Witnesses, 


Subpoena.  The    process  which  our  courts  of  law   have  instituted   for  the 

purpose  of  compelling  the   attendance  of  witnesses,  is  the  writ  of 
subpoena  ad  testificandum,  (a)     This  writ  commands  the  witness  to 


(a)  See  Note  1,  p.  1. 


Ch.   1.]         Of  the  Attendance  of  Witnesses. 

appear  at  the  trial,  to  testify  what  he  knows  in  the  cause,  under 
the  penally  of  10/.  to  be  forfeited  to  the  king.(l)  (o)  And  the 
stai.  5  Eliz.  c.  9,  s.  12,  (which  refers  to  the  process  of  courts  of  5  Eliz.  c  ». 
record,  for  the  attendance  of  witnesses,  as  process  well  known  and 
then  in  use,  (2)  gives  an  additional  remedy,  by  enacting,  that 
"  if  any  person  (upon  whom  any  process  out  of  a  court  of  record 
shall  be  served,  to  testify  concerning  any  cause  or  matter  depend- 
ing there,  and  having  tendered  to  him,  according  to  his  counte- 
nance or  calling,  such  reasonable  sum  of  money  for  his  costs  and 
charges, (^)  as,  with  regard  to  the  distance  of  the  place,  is  neces- 
sary to  be  allowed)  do  not  appear  according  to  the  tenor  of  the 
process,  not  having  a  lawful  and  reasonable  cause  to  the  contra- 
ry, he  shall  forfeit  for  every  such  offence  10/.,  and  yield  such  fur- 
ther recompense  to  the  party  grieved,  as,  by  the  discretion  of  the 
judge  of  the  court  out  of  which  the  process  issues,  shall  be  award- 
ed."(c) 

If  a  witness  has  in  his  possession  any  deeds  or  writings,  which  Subpoena 
are  required  at  the  trial,  a  special  clause  must  be  inserted  in  the  "^es  tecum, 
subpoena,  called  a  duces  tecum, (d)  commanding  him  to  bring  them 
with  him.  When  the  writings  are  in  possession  of  the  adverse 
party  or  his  attorney,  notice  should  be  given  to  produce  them,(e)  Police 
and  if,  after  proof  of  a  reasonable  notice,  they  are  refused,  sec- 
ondary evidence  of  the  contents  will  be  admitted.  It  v.ill  not 
be  necessary  to  give  notice  to  the  defendant  in  person;  giving 
it  to  his  attorney  will  be  sufficient  even  in  penal  actions.  (3)  (/) 
This  writ  of  subpoena  duces  tecum,  as  well  as  the  other  writ  of 
subpcena  ad  testificandum,  is  compulsory  upon  the  witness.  And 
though  it  will  be  a  question  for  the  consideration  of  the  judge 
at  the  trial,  whether  in  any  particular  case  the  actiial  production 
of  writings  should  be  enforced,  yet  the  witness  ought  nhvays  to 
have  them  ready  to  be  produced,  if  required,  in  obedience  to  the 
judicial  mandate.  (4)  From  the  earliest  times,  our  courts  of 
law,  in  order  to  give  effect  to  their  |)roceedings,   have  resorted 

(1)  See  form  of  this  writ,  on  a  trial,  v.  Winter,  3  T.  R.  306.  Sea  form  of 
in  Tidd.  App.  p.  381;  and  on  a  writ  writ,  Tidd.  App.  332.  And  see  fur- 
of  inquiry,  p.  241.  ther  as  to  such  notice,  infra.  Chap.  8. 

(2)  See  9  East,  484.  Sec.  1. 

(3)  Attorney  General  v.  Le  Mer-  (4)  Amey  v.  Long,  9  East,  485. 
chant,    2    T.    R.    203.    n.    Gates  q.    t.     Field  v.  Beaumont,  1  Swanst.  209. 


(a)  See  Note  2,  p.  I.     (6)  See  Note  3,  p.  7.     (c)  See  Note  4,  p.  II.     {d)  See 
Note  5,  p.  11.     (e)  See  Note  6,  p.  12.     (/)  See  Note  7,  p.  13. 


4  Of  the  Attendance  of  Witnesses.         [Ch.   1. 

to  these  compulsory  measures  for  the  production  of  evidence  ; 
measures  obviously  csseniial  to  the  existence  and  constitution  of 
courts  of  justice,  (fl) 

Service.  The  writ  of  subpoena,  when  sued  out  is  to  be  regularly  served 

on  the  witness;  and  as  only  four  witnesses  can  be  included  in 
one  writ  or  subpa'na,(l)  several  writs  are  frequently  necessary. (6) 
In  order  to  save  expense,  it  is  settled,  that  service  of  a  ticket,  con- 
taining the  substance  of  the  writ,  will  be  as  effectual  as  service 
of  the  writ  iiself.(2)  (c)       The  writ  or  ticket  should  be  served 

When.  personally  on  the  witness, (3)  and  in  lensonable  time(f/)  before  the 

day  of  trial,  that  he  may  sufFer  the  less  inconvenience  from  his 
attendance  on  the  court.  (4)  Notice  to  a  witness  in  London  at 
two  in  the  afternoon,  requiring  him  to  attend  the  sittings  at 
AVestn)inster  in  the  course  of  the  same  evening,  has  been  held 
to  be  too  late. (5)  If  the  witness,  whose  attendance  is  required, 
be  a  married  woman,  it  will  be  necessary  to  serve  the  subpoena 
upon  her  personally,  and  the  tender  of  the  expenses  should  be 
made  to  her,  and  not  to  her  husband. (6)  If  a  cause  appointed 
for  one  sitting  be  made  a  remanet,  the  subpoena  must  be  re-sealed 
and  re-served. (7) 

Privilege  from  Witnesses,  as  well  as  the  parties  in  a  suit,  are  protected  by 
courts  of  justice  and  privileged  from  arrest,  (e)  during  the  neces- 
sary time  consumed  by  them  in  going  to  the  place  where  their 
attendance  is  required,  in  staying  there  for  the  purpose  of  such 
attendance,  and  in  returning  from  the  place.  (8)  (/)  And,  in  or- 
dinary cases,  it  is  not  necessary  for  the  protection  of  a  witness, 
that  he  should  have  been  served  witii  a  subpoena,  if,  upon  appli- 

For  what  time,  cation  to  him,  he  consented  to  attend  without  one.  (9)  (g)  A  reason- 
able time  is  allowed  to  the  witness  for  going  and  returning;  and 


(1)  Cowp.  846.  (5)  2  Tidd.  Pr.  856. 

(2)  Goodwin  v.  West,  Cro.  Car.  (6)  Cro.  El.  122.  1  Jon.  430,  S.  P. 
522,  540.  Maddison  v.  Shore,  5  Mod.  (7)  Sydenham  v.  Rand,  24  G.  3. 
355,  S.  P.  See  form  of  ticket  on  writ  K.  B  ,  cited  from  MS.  in  2  Tidd.  Pr. 
of  inquir}',   in  Tidd.   App.    p.   241;  and  S55. 

on  trial,  id.  p.  S31.  (S)    2    RolL  Ab.    272.     Lightfoot   v. 

(3)  Sinnlt  V.  Whitmiil,  2  Stra.  1054.  Cameron,  2  Black.  Rep.  1113.  Mee- 
Wakefield's  case.  Rep.  temp  Hard,  kins  v.  Smith,  1  H.  Bi  636.  Randall 
313,  S.  P.  V.  Gurney,  3  Barn.  &  Aid.  252. 

(4)  Hammond  v.  Stewart,  1  Stra.  (9)  Lord  Kenyon,  C.  J.,  in  Arding  v. 
509.  Flower,  8  T.  R.  536.      1  Tidd.  Pr.  198. 


(a)  See  Notes,  p.  13.     (6)  See  Note  9,  p.  14.     (c)  See  Note  10,  p.  14.     (rf)  See 
Notell,p.  14.  (c)8eeNotel2,p.  14    (/)  Sec  Note  13,  p.  15.  (^)  See  Note  14,  p.  16. 


Ch.  1.]  0/  the  Attendance  of  Witnesses,  6 

in  making  this  allowance  the  courts  are  disposed  to  bo  liberal.(l)(a) 
This  privilege  has  been  extended  to  a  party  in  the  suit  attending  To  whom, 
on  an  arbitration  under  an  order  of  nisi  prius,{2)  or  on  the  ex- 
ecution of  a  writ  of  inquiry, (3)  and  to  |)crsons  attending  the 
insolvent  debtors'  court.  (4)  A  bankrupt,  also,  attending  a  meet- 
ing of  commissioners  in  pursuance  of  a  notice,  and  wiinesses 
attending  upon  summons,  are  protected  from  arrest  at  the  suit  of 
a  creditor. (5) (6)  And,  by  the  mutiny-act,  witnesses  are  privi- 
leged from  arrest  during  their  necessary  attendance  on  courts 
martial,  in  the  same  manner  as  witnesses  attending  a  court  of 
lavv.(c)  A  witness  is  not  privileged  from  being  arrested  by  his  bail; 
the  bail  may  take  him,  after  he  has  finished  his  evidence,  for  the 
purpose  of  surrendering  him.(6)((/) 

A  subpoena  can  have  no  effect,  where  the  witness  is  in  cuslo- Habeas? corpm 
dy,  or  on  board  a  ship  under  the  command  of  an  officer,  who  refu- du,n " 
ses  to  allow  his  attendance. (e)  The  course,  then,  is  to  sue  out  a 
\\v\\.oi  habeas  corpus  ad  teslificandxim;{J){f)  for  which  purpose  ap- 
plication ought  to  be  made  to  the  court  or  to  a  judge,  upon  affi- 
davit of  the  party  applying,  stating  that  he  is  a  martial  witness, 
and  willing  to  attend. (S)  (^)  Upon  this  application  the  court  in 
its  discretion  will  make  a  rule,  or  the  judge  will  grant  his  fiat{h) 
or  a  writ, (9)  which  is  then  sued  out,  signed,  and  sealed. ( 10) (i) 
The  writ  should  be  left  with  the  sheriff:' or  other  officer,  who  will  be 
bound  to  bring(A;)  up  the  body,  on  being  paid  his  reasonable  charg- 
es. (/)     If  the  witness  be  a  prisoner  of  war,    he  may  be  examined 

(1)  2  Black.  Rep.  1113.  Hatch  v.  (6)  Ex  parte  Lyne,  1  Ry.  &  Mo. 
Blisset,  Gilb.  Cas.  308,  cited  2  Stra.  N.  P.  R.132.  Lord  Tenterden  refused 
9S6.  13  East,  16,  n.(a)  Willingham  v.  to  discharge  him,  on  motion. 
MaUhews,  2  Marshall,  Rep.  57.  See  (7)  Tidd.  Pr.  858.  Ex  parte  Til- 
Randall  V.  Gurney,  3  Barn.  &  Aid.  252,  ioison,  1  Stark.  N.  P.  C.  470.  See 
and  1  Tidd.  Pr.  198,  where  the  cases  on  form  of  affidavit  in  Tidd's  App.  c.  33, 
this  subject  are  collected.  s.  37,  p.  332. 

(2)  Spencer  v.  Stewart,  3  East,  89.  (S)  11.  v.  Roddam,  Cowp.  672.  On 
Randall  v.  Gurney,  3  Barn.  &  Aid.  the  trial  of  Sir  John  Frein  for  high 
252.  treason,    Lord  C.    J.    Holt,    on    the    np- 

(3)  4  Moore,  34.  plication    of   the    prisoner,     ordered    his 

(4)  6  Taunt.  356.  clerk  to  prepare  a   warrant    for  a  habeas 

(5)  5  Geo.  2.  c.  30,  §5.  6  G.  4.  corpus,  4  St.  Tr.  600,  fol.  ed.  13. 
c.  16.  s.  117.  Ardi.ng  V.  Flower,  8  T.  R.  Howell's  St.  Tr.  3.  And  see  Layer's 
534.     2   Blac.    Rep     1142.      Kidder  v.  case,  Fortesc.  Rep.  396. 

Williams,    4   T.    R.    377.      Spencer   v.         (9)  R.  v.  Burbuge,  3  Burr.  1440. 
Stuart,    3    East,    89.       Ex    parte    Byne,  (10)  Tidd.  Pr.  858. 

1  Ves.  &  Beam.  316.     1   Tidd.  Pr.  199. 


(a)  See  Note  15,  p.  16.  (6)  See  Note  16,  p.  16.  (c)  See  Note  17,  p.  16.  (d) 
Sea  Note  18,  p.  17.  (e)  See  Note  19,  p.  17.  (/)  See  Note  20,  p.  18.  (^)  See 
Note  21,  p.  18.  (A)  See  Note  22,  p.  19.  (i)  See  Note  23,  p.  19.  ( A: )  See  Nolo 
S4,  p.  19.     (I)  8«e  Note  25,  p.  19. 


6  Of  the  Attendance  of  Witnesses.  [Ch.  1. 

by  consent  on  interrogatories,  but  cannot  be  brought  up  wiihout  an 
order  from  the  secretary  of  state.  (1)  (a) 

It  has  been  doubted,  whether  jiersons  in  custody  could  be  brought 
up  as  witnesses  by  writ  of  habeas  corpus,  to  give  evidence  before 
any  oihtir  courts  except  those  at  Westnninster;  but  now,  by  stat.  43 

43G.  3.  c  140.  Q_  2,  c.  140,  it  is  enacted,  xbat  a  judge  of  either  of  the  courts  may, 
at  his  discretion,  award  such  writ  for  bringing  a  prisoner,  detained 
in  any  gaol  in  England,  before  a  court  martial,  or  before  commis- 
sioners of  bankrupt,  commissioners  for  auditing  the  public  accounts, 
or  other  conuuissioners   acting  by  virtue  of  any  royal  commission 

44G.  3.  c.  102.  o'"  \^'3'''3nt-  ^nJ  t'i6  Stat.  44  G.  3,  c.  102,  authorizes  the  judges 
of  the  court  of  King's  Bench,  or  Common  Pleas,  or  Exchequer,  in 
England  or  Ireland,  or  justices  of  oyer  aiid  terminer  or  gaol  de- 
livery (being  such  judge  or  baron,)  to  award  writs  o(  habeas  corpus 
for  bringing  prisoners  detained  in  gaol  before  any  of  the  courts,  or 
any  sitting  at  nisi  prins,  or  before  any  court  of  record  in  those  parts 
of  the  United  Kingdom,  to  be  there  examined  as  witnesses  in  any 
civil  or  criminal  cause.  By  the  same  act,  justices  of  great  sessions 
in  Wales  and  the  countv  palatine  of  Chester  have  the  same  au- 
thority within  the  limits  of  their  jurisdiction.  The  application  for 
a  wTit  of  habeas  corpus  under  tbis  statute  ought  to  be  made  to  a 
judge  out  of  court. (2)  (6) 

Payment  of  ^^  witness  is  bound  to  appear  in  civil  cases,  unless  his  reasona- 

fixpenses.  ble  expenses,  for  going  to  and  returning  from  the  trial,  and  for  his 
reasonable  stay  at  the  place,  be  tendered  to  him  at  the  time  of  serv- 
ing the  subpoena;  nor,  if  he  appears,  is  he  bound  to  give  evidence, 
till  such  charges  are  actually  paid  or  tendered, (3)  (c)  except  he 
reside  within  the  weekly  bills  of  mortality,  and  be  summoned  to 
give  evidence  within  them,  in  which  case  it  is  usual  to  leave  a 
shilling  with  the  subpCEna  ticket. (4)  The  necessity  of  this  previous 
tender  arises  from  the  special  provision  in  the  act  of  Elizabeth,  be- 

(1)  Furly     V.     Newham,    2     Doug.     Rep.  36.     Puller  v.  Prentice,  1  H,  Blac. 
419.  49.      Hallett   v.    Mears,    13   East,    15. 

(2)  Gordon's  case,  2   I\Iaule  &  Selw.  Ex    parte     Roscoe,    1   Merivale,     Rep. 
582.  191. 

(3)  Chapman    v.     Poynton,    2   Stra.  (4)  3   Blac.    Com.    379.      Tidd.    Pr. 
1150.     13  East,  16  n.  a.    S.    C,    more  856,865. 

fully  stated.     Bowles  v.  Johnson,  iBlac. 


(a)  S«e  Not«  26,  p.  21.     (6)  See  Note  27,  p.  21.     (c)  See  Note  28,  p.  28- 


Cli.  !.]  Of  ike  Attendance  of  Witnesses.  7 

fore  cited.  If  a  necessary  witness  is  brought  over  from  a  foreign  Foreign  wit- 
country,  whether  brought  after  or  before  the  commencement  of  an 
action,  the  reasonable  expenses  both  of  his  coming  to  this  country, 
and  of  his  subsistence  here  pending  the  action,  and  of  his  return, 
will  be  allowed  in  the  taxation  of  costs,  provided  he  is  brought 
over  bona  fide  for  the  purposes  of  the  particular  action(l).  Wiih  For  loss  of 
respect  to  compensation  for  loss  of  time,  the  general  rule  is,  that  it 
ought  not  to  be  allowed ;(2)  some  compensation  has  been  usually 
allowed  to  medical  men  and  attornies,  but  not  to  others. (*)  (a) 

Tf  a  wellness,  who  has   been    duly   served  with  the  writ,  and  has  Remedies  for 
had  a  tender  of  the  reasonable  expenses,  omit  to  attend  at  the  trial  ^°"'^ 
without  a  sufficient  cause,  he  is  liable  to  be    proceeded    against  in 
one  of  three  ways.      The  first  and  more  usual  course  of  pioceeding, 
is  by  attachment  for  a  contempt  of  the  process  of  the  court,  (3)  which  Attachment, 
appears  to  be  as  ancient  as  the  common  law  itself. (4)      In  order  to 
ground  this  summary  proceeding,  it  will   not  only  be  necessary   to 
show  an  ill   motive   in  the  witness,  or  negligence   and   inattention 
to  the  process,  of  the  court,  but  also  to  prove,  that  the  witness  was 
personally  served, (.5)  and    that  his  reasonable  expenses  were  paid 
or  tendered  at  the  time  of  the  service  of  the  subpoena. (6) (6)      A 
second  remedy  is  by  a  special  action   on  the  case   for  damages,  at 
common  law.(7)(c)      The  third,  and  last,  is  an  action  on  the  stat.  Action, 
5  Ellz.  c.  9,  s.  12,  for  the  penalty  of  £10,  and  also  for  the  further 
recompense  recoverable  under  that  statute. (c?)      This  action  for  a 
further  recompense  will  not  lie,  unless  the   amount  has   been  pre- 
viously assessed  by    the  court,    out  of  which   the   process   issued: 
neither  the  jury  nor  the   judge    at   nisi  prius   being   competent  to 


(1)  Tremain  V.  Faith,  6  Taunt.  88.  1  846.  Doug  561.  Biandford  v.  De 
Marshall,  563,  S.  C  Tastet,  5  Taunt.  260.     Home  v.  Smith, 

(2)  Moor  V.  Adam,  5  Maule  &  Selw.  6  Taunt.  9.  1  Marshall,  410,  S.  C. 
156.  Willis  V.  Peckham,  1  Brod.  Barrow  v.  Humphreys,  3  Barn.  &  Aid. 
&  Bing.    515-      Lowry   v.    Doubleday,  598. 

5  Maule  tc  Selw.   159,    (b.)     Severn  v.  (4)  See  Pearson  v.  lies,    Doug.    561. 

Olive,  3   Brod.    &   Bing.  72.     6  Moore,  Amey  v.  Long,  9  East,  483. 

239.  (5)    2,Stra.  1054. 

(3)  2     Ld.    Raym.    1528.      1    Stra.  (6)  Ante,  p.  6.     Tidd.  Pr.  858. 

510.     2  Stra.  810,  1054,    1150.     Cowp.  (7)  Pearson  v.    lies,  Doug.  561. 


(*)  Lord  Ellenborough,  in  the  case  of  Moor  v.  Adam,  after  citing  the  case  of  Low- 
ry V.  Doubleday,  added,  "  he  believed  the  practice  had  been  to  make  allowance  to 
medical  men  and  attornies,  but  not  to  others." 


(a)  See  Note  29,  p.  24.     (b)  See  Note  30,  p.   28.     (c)  See  Note  31,  p.  28- 
(d)  See  Note  32,  p.  28. 


8  Of  the  Attendance  of  Witnesses.  [Ch.  1. 

make  the  assessinent.(l)      When  the  assessment  has  been  made, 
an  action  of  debt  will  lie.  (a) 

In  criminal  ca-      The  meaiis  of  compelling  the  attendance  of  witnesses  In  crim- 

SC3. 

inal  cases  are  of  two  kinds  ;(2)  first,  by  process  of  subpoena, 
Subpcena.  for  disobedience  to  which  the  person  served  with  the  process  is 
liable  to  an  attachmeni;(3)(6)  (c)  or,  secondly,  the  justice  or  coro- 
ner, who  takes  the  information  of  witnesses,  may,  at  the  time  of 
Recognizance,  {giving  it,  or  at  any  time  before  tlie  trial,  bind  them  over  to  ap- 
pear; and,  if  they  refuse  to  come  or  to  be  bound  over,  may  com- 
mit them  for  a  contempt.  (4)  This  proceeding  by  recognizance  is 
the  ordinary  and  more  effectual  method.  ((/) 

Subpoena  for  Jn  prosecutions  for  misdemeanors  the  defendant  has  been, 
from  the  earliest  limes,  allowed  the  writ  of  subpoena.  But 
prisoners  have  no  right,  by  the  common  law,  to  this  process  in 
capital  cases,  without  the  special  order  of  the  court. (4)  For- 
merly, in  such  cases,  a  prisoner  was  put  upon  his  trial  under  a 
twofold  disadvantage;  he  was  unable  to  compel  the  attendance 
of  witnesses,  and,  if  they  voluntarily  attended,  their  evidence, 
not  being  given  on  oath,    received  less  credit  than  the  evidence 

7  W.  3,  0.  3.  on  the  part  of  the  prosecution.  (*)  By  stat.  7  W.  3,  c.  3,  s.  7, 
all  persons  indicted  for  any  high  treason,  whereby  corruption 
of  blood  may  ensue,  shall  have  the  like  process  of  the  court, 
where  they  shall  be  tried,  to  compel  their  witnesses  to  appear 
for    them,  as  is  usually   granted    to  compel   witnesses  to  appear 

7Ann.  Bt.  1,  against  them.  And  now,  as  the  stat.  1  Ann.  st.  1,  c.  9,  s.  3, 
enacts,  that  all  witnesses,  on  behalf  of  a  prisoner  on  a  trial  for 
treason  or  felony,  shall  be  sworn  in  the  same  manner  as  wit- 
nesses for  the  crown,  and   be  liable  to  all  the  penalties  of  perjury, 

(1)  Pearson  v.  lies,  Doug.  561.  An-  crown-office,  requiring  the  witness  to 
te,  p.  3.  appear    at    the    ensuing   assizes   in    the 

(2)  2  Hale  P.  C.  281.  Bonnet  v.  country;  and  the  court  of  K.  B.  granted 
Watson,  3  INIaule  &  Seivv.  1.  an  attachment. 

(3)  R.  V.  Ring,  8  T.  R.  585.  The  (4)  4  Biac.  Com.  359.  2  Hawk.  P. 
Bubpcena  in    this   case   issued  from    the     C.  c.  46,  s.  17. 

(*)  Many  instances  occur  among  the  early  State  Trials,  of  witnesses  refusing  to 
come  into  court  to  be  examined  on  behalf  of  the  accused:  and  there  are  some,  in 
which  witnesses  have  been  peremptorily  sent  out  of  court  by  the  judge,  and  not  al- 
lowed to  give  evidence. 


(o)  See  Note  83,  p.  28.    (6)  See  Note  34,  p.  29.    (c)  See  Note  36,  p.  29.  (d)  Se« 
Note  86,  p  29. 


Ch.   ].]         Of  the  Attembtnce  of  Witnesses.  9 

process  of  subpoena  may  be  taken  out  by  the  prisoner  in  any  case 
whatever,  (a) 

In  order  to  provide  for  the  appearance  of  witnesses,  to  answer 
in  cases  where  warrants  are  not  usually  issued,  and  to  give 
evidence  in  criminal  prosecutions  in  any  part  of  the  United 
Kingdoni,  it  is  enacted  by  a  late  act  of  parliament,  slat.  45,  G.  3,  ^^  G!.  3.  c  92. 
c.  92,  s.  8,  and  s.  4,  that  the  service  of  a  writ  of  subpoena  or 
other  process,  in  any  one  of  the  parts  of  the  United  Kingdom, 
shall  be  as  effectual  to  compel  his  appearance  in  any  other  of 
the  parts  of  ilie  same,  as  if  the  process  had  been  seived  in  that 
part  where  tlie  person  is  required  to  appear.  And  if  the  person 
served  does  not  appear,  the  court,  out  of  which  the  process 
issued,  may  transmit  a  certificate  of  the  default  in  the  manner 
specified  by  the  act,  and  the  court,  to  which  the  certificate  is 
transmitted,  m.ay  punish  the  person  for  his  default,  as  if  he  had 
refused  to  apj)ear  to  process  issuing  out  of  that  court;  provided 
it  appear,  that  a  reasonable  and  sufficient  sum  of  money,  to 
defray  the  expenses  of  coming  and  attending  to  give  evidence 
and  of  returning,  was  tendered  to  the  person  making  default,  at 
the  time  when  the  subpoena  or  other  process  was  served  upon  him. 

In  civil  proceedings,  as  we  have  seen,  a  witness  is  not  obliged  to  Compensation, 
attend  or  give  evidence,  unless   his   expenses   are   duly  tendered; 
but,  in  criminal  {)rosecutions,  witnesses  are   bound   to   appear  un- 
conditionally. (1)  (6)      On  the  other  hand,  it  is  reasonable  and  high- 
ly expedient,  that  when  tliey  attend  on  behalf  of  the  public,  a    fair 
compensation  should  be  given  them  for  their  trouble  and    necessa- 
ly  expense.      Formerly,  however,  the  law  provided  no    means   for  Costa  in  felo- 
reimbursing  them;  a   defect   in   our  judicial  administration   which  "'^®- 
was  at  length  remedied  by  stat.  27  G.  2,  c  3,  s.  3.      This  statute  27  G.  2,  c.  3. 
enacts,  that  "  when  any  poor  person  shall  appear  on   recognizance 
to  give  evidence  against  another  accused  of  grand  or  petit  larceny 
or  other  felony,  the  court  may,  on  the  oath  of  such  person,  and  on 
consideration  of  his  circumstances,  in  open  court,  order  the  treasur- 
er of  the  county  or  place  in  which  the  offence  shall  have  been  com- 

(l)  4  Hawk.  b.  2,  c.   46,   s.    173.     2     bles  of  slat.    27  G.  2,  c.    3,    g.    3,    and 
Hale    P.    C.    282.       See   also    Pream-     stat.  IS  G.  3,  c.  19,  s.  7. 

(a)  See  Note  37,  p.  30.      (6)  See  Note  38,  p.  30. 

Vol.  I.  2 


10  Of  the  Attendance  of  Witnesses.  [Ch-.   1. 

mitted,  to  pay  such  sum  of  money  as  to  the  court  shall  seem  rea- 
sonable, for  his  lime,  trouble,  and  expense." 

As  tliis  statute  extended  only  to  poor  persons  who  appeared  on 
recognisance,  and  not  to  such  as  appeared  on  sub|)oenn  to  give  evi- 
dence, it  was  afterwards  deemed  reasonable  by  the  legislature,  that 
every  person  so  appearing  on  recognizance  or  subpoena,  should  be 
allowed  his  reasonable  expenses;  and  also,  in  case  of  poverty,  a 
8  G.  3,  c.  19.  satisfaction  for  his  trouble  and  loss  of  time,  'i  ho  stat.  G  3,  c. 
19,  s.  8,  therefore  enacted,  that  "  where  any  jiersoii  shall  appear 
on  recognizance  or  subpoena,  to  give  evidence  as  to  any  grand  or 
petit  larceny  or  other  felony,  whether  any  bill  or  indictment  be 
preferred  or  not  to  the  grand  jury,  it  shall  be  in  the  power  of  the 
court  (provided  the  person  shall,  in  the  oj)inion  of  the  court,  have 
bona  fide  attended  in  obedience  to  such  recognizance  or  subpcBna) 
to  order  the  treasurer  of  the  county  or  division,  in  which  the  offence 
shall  have  been  committed,  to  pay  him  such  sum  as  to  the  court 
shall  seen)  reasonable,  not  exceeding  the  expenses  which  it  shall 
pppear  to  the  court  the  said  person  was  bona  fide  put  unto  by  rea- 
son of  the  said  recognizance  and  subpoena,  making  a  reasonable 
allowance,  in  case  he  shall  appear  to  be  in  poor  circumstances^ 
for  trouble  and  loss  of  time." 

58  G.  3,c.  70,  The  Stat.  58  G.  3,  c.  70,  s.  4,  provides,  that,  in  case  of  felony, 
the  court,  before  whom  a  person  shall  be  prosecuted  or  tried,  shall 
be  empowered  (at  the  request  of  any  person  bound  to  prosecute, 
or  subpoenaed  to  give  evidence,  and  who  shall  appear  to  prosecute 
or  give  evidence,  or  who  shall  appear  to  the  court  to  have  been 
active  in  the  apprehension  of  a  person  accused  of  some  one  of  the 
offences  mentioned  in  several  recited  acts)  to  order  the  sheriff  or 
treasurer  of  the  county  to  pay  to  the  prosecutor  and  witnesses,  and 
to  the  person  concerned  in  such  apprehension,  as  well  the  costs, 
charges,  and  expenses,  which  the  prosecutor  shall  be  put  to  in 
preferring  the  indictment,  as  also  such  sum  of  money  as  to  the  court 
shall  seem  reasonable  and  sufficient  to  reimburse  them  for  iheir 
expenses  in  attending  before  the  grand  jury  to  prefer  the  indict- 
ment, and  in  carrying  on  the  prosecution,  and  also  to  compensate 
them  for  the  loss  o^  time  and  trouble   in  the   apprehension  and 


Cli.   1.]         Of  the  Attendance  of  Witnesses.  11 

proseculion.(*)  'i'lie  8th  section  further  provides,  that  no  person 
shall  be  entitleci  to  any  such  costs  or  expenses  for  nttending  the 
court,  unless  he  shall  have  been  bound  by  recognizance,  or  have 
previously  received  a  subpoena  to  attend,  or  a  written  notice  for 
(hat  purpose  from  the  prosecutor,  his  agent,  or  his  attorney. 

The  latest  statute  on  this  subject  is  tliat  of  7  G.  4,  c.  64,  s.  22,  7  G.  4,  c  64. 
which  enacts,  that  the  court  before  which  any  person  shall  be 
prosecuted  or  tried  for  any  felony,  is  hereby  authorized  and  enfi- 
powered,  at  the  request  of  the  prosecutor,  or  of  any  other  person 
who  shall  appear  on  recognizance  or  subpoena,  to  prosecute  or 
give  evidence  against  any  person  accused  of  any  felony,  to  order 
payment  (o  the  prosecutor  of  the  costs  and  expenses,  whicli  such  Costs  of  in- 
prosecutor  shall  incur  in  preferring  the  indictment,  and  also  pay-  <liciment. 
ment  to  the  prosecutor  and  witnesses  for  the  prosecution  of  such 
sum  of  money  as  to  the  court  shall  seem  reasonable  and  sufficient 
to  reimburse  such  prosecutor  and  witnesses  for  the  expenses  they  of  attendance, 
shall  have  severally  incurred  in  attending  before  the  examining 
magistrate  or  magisti-ates  and  the  grand  jury,  and  in  otherwise 
carrying  on  such  prosecution,  and  also  to  compensate  them  for 
their  trouble  and  loss  of  time  therein;  and  although  no  bill  of 
indictment  be  preferred,  it  shall  still  be  lawful  for  the  court,  when 
any  person  shall,  in  the  opinion  of  the  court,  bona  Jide  have  at- 
tended the  court  in  obedience  to  any  such  recognizance  or  sub- 
pcEna,  to  order  payment  unto  such  person  of  such  sum  of  money 
as  to  the  court  shall  seem  reasonable  and  sufficient  to  reimburse 
such  person  for^ihe  expenses  which  he  or  she  sliall  have  bona  fide 
incurred  by  reason  of  attending  before  the  examining  magistrate 
or  magistrates,   and  by   reason  of  such  recognizance  or   subpoena, 

and  also  to   compensate  such  person  for  trouble  and  loss  of  time;  Before  exam- 

-  I  •    •        Jning  magis- 

and   the   amount   of  expenses  of  attending   bplore   the   examinmg  trate. 

magistrate  or  magistrates,  and  the  compensation  for  trouble  and 
loss  of  time  therein,  shall  be  ascertained  by  the  certificate  of 
such  magistrate  or  magistrates,  granted  before  the  trial  or  attend- 
ance in  court,  if  such  magistrate  or  magistrates  shall  think  fit  to 
grant   the   same  ;    and  the  amount  o(  all  the   other  expenses  and 


(*J  The  opinion  of  the  judges,  on  the  construction  of  this  section,  is  stated  in  The 
Crown  Circ.  CoiDp.  p-  10,  9th  ed. 


12  Of  (he  Altendance  of  Witnesses.        [Cli.  1. 

compensation  sliall  be  asccrtnined  by  the  proper  oflicer  of  the 
court. 

Case  in  mis-  Tlic  act  last  mentioned  gives  authority  also  to  the  court,  in  cer- 
tain cases  of  misdemeanor,  to  order  the  payment  of  the  costs  and 
expenses  of  prosecutions,  'ibis  statute  provides,  that  where  any 
prosecutor  or  other  person  shall  appear  before  any  court  on  re- 
cognizance or  subpoena,  to  prosecute  or  give  evidence  against  any 
person  indicted  of  any  assault  with  intent  to  commit  felony,  of  any 
attempt  to  commit  felony,  of  any  riot,  of  any  misdemeanor  for 
receiving  any  stolen  properly,  knowing  the  same  to  have  been 
stolen;  of  any  assault  u])on  a  peace  officer  in  the  execution  of  his 
duty,  or  upon  any  person  acting  in  aid  of  such  officer,  of  any  neg- 
lect or  breach  of  duty  as  a  peace  officer,  or  any  assault  committed 
in  pursuance  of  any  conspiracy  to  raise  the  rate  of  wages,  of  know- 
ingly and  designedly  obtaining  any  property  by  false  pretences,  of 
wilful  and  indecent  exposure  of  the  person,  of  wilful  and  corrupt 
perjury,  or  of  subornation  of  perjiu'y;  every  such  court  is  hereby 
authorized  and  empowered  to  order  payment  of  the  costs  and  ex- 
penses of  the  prosecutor  and  witnesses  for  the  prosecution,  to- 
gether with  a  compensation  for  their  trouble  and  loss  of  time, 
in  the  same  manner  as  courts  are  hereinbefore  authorized  and 
empowered  to  order  the  same  in  cases  of  felony;  and,  although 
no  bill  of  indictment  be  preferred,  it  shall  be  lawful  for  the  court, 
where  any  person  shall  have  bona  fide  attended  the  court,  in  obe- 
dience to  any  such  recognizance,  to  order  payment  of  the  ex- 
petiscs  of  such  person,  together  with  a  compensation  for  his  or 
her  trouble  and  loss  of  time,  in  the  same  manner  as  in  cases  of 
felony:  provided,  that  in  cases  of  misdemeanor,  the  power  of  or- 
dering tlie  payment  of  expenses  and  compensation  shall  not  ex- 
tend to  the  attendance  before  the  examining  magistrate (o). 

Tender.  It   has  been  doubtGd(l),  whether   a  witness   may  not  lawfully 

refuse  to  obey  a  subpoena  on  a  criminal  prosecution,  as  well  as  in 
a  civil  suit,  unless  he  has  a  tender  of  bis  reasonable  expenses;  (b) 
and  the  doubt  is  suggested  in  consequence  of  a  provision  in  the  stat. 
45  G.  3,  c.  92,  which  (after  enacting,  ;bat  service  of  subpoena  on  a 

(1)   See  Chitty'8  Treatise  on  Criminal  Law,  yo\.  i    612. 
(a)  FeeNote  39,  p.  80,     {b)  See  Note  40,  p.  30. 


Cli.   1.]         Of  the  Attendance  of  Witna^ses.  15 

witness  in  any  one  of  the  parts  of  the  United  Kingdom,  for  liis  ap- 
pearance on  a  criminal  prosecution  in  any  otiier  of  the  parts  of  the 
same,  shall  be  as  effectual  as  if  it  had  been  in  iluit  p^n't  where  he 
is  required  to  appear)  provides,  that  he  shall  not  he  punishable 
for  default,  unless  a  sufficient  sum  of  money  has  been  tendered  to 
him,  on  the  service  of  the  subpoena,  for  defraying  his  expenses  of 
coming,  attending,  and  I'eturning.  One  ol)ject,  w'nich  the  legis- 
lature had  in  vievv,  was  to  provide  for  the  ap|)enrance  of  witnesses 
in  any  of  the  parts  o(  the  United  Kingdom,  and  they  are  therefore 
subject  to  ptmishinent  for  non-attendance.  On  the  other  hand, 
as  ihe  expenses  of  going  from  one  of  the  parts  of  the  United 
Kingdom  to  either  of  the  other  parts  would  necessarily  be  great, 
they  were  allowed  to  insist  on  the  payment  of  their  reasonable 
charges,  previous  to  the  journey;  a  provision  more  especially  ne- 
cessary at  the  time  of  passing  this  statute,  when,  in  some  parts  of 
the  kingdom,  witnesses  were  not  entitled  to  any  compensation  for 
attending  to  give  evidence  in  criminal  cases. (1)  But  as  there  is 
no  statute  respecting  a  tender  of  expenses  in  the  case  of  a  crimi- 
nal prosecution,  except  that  mentioned  above,  (which  is  confin- 
ed to  the  case  where  the  process  is  served  in  one  of  the  parts  of  the 
United  Kingdom  for  the  appearance  of  the  witness  in  another  of 
the  parts,)  and  as  the  tender  of  expenses  in  civd  suits  is  under  the 
special  provision  of  an  act  of  parliament,  the  general  rule  in  ordi- 
nary cases  (whell>er  of  felony  or  misdemeanor)  appears  to  be,  that 
witnesses,  making  default  on  the  trial  of  criminal  prosecutions, 
are  not  exempted  from  attachment,  on  the  ground  that  their  ex- 
penses were  not  tendered  at  the  time  of  the  service  of  the  subpoe- 
na; although  the  court  would  have  good  reason  to  excuse  them 
for  not  obeying  the  summons,  if,  in  fact,  they  had  not  the  meana 
of  defraying  the  necessary  expenses  of  the  journey.  (2). 

Cotnmissioners  of  bankrupt  may   summon  any   persons   whom  Commissioners 
they  believe  capable  of  giving   information  concerning   the  trade,  "     <»""■"?• 
dealings,  or  estate  of  the  bankrupt,    &c.   and   if  the    witness  does 
not  come  at  the  lime  appointed,  they    may  order  hitn  to  be  appre- 
hended(3).     Every  witness  summoned   to  attend    before  commis- 


(I)  In  Ireland,  tha  expenses  of  wit-  (2)  See  ante,  p  9.  (1.) 
nesses  in  case  of  felony  were  first  allow-  (3)  6  G.  4.  c.  16.  a.  33. 
ed  by  «t.  65  G.  3.  c.  91. 


ii 


Of  the  Attendance  of  Witnesses.       [Cli.    I. 

sioners  shall  have  his  necessary  expenses  temiered  to  him,  in  the 
same  manner  as  is  required  on  service  of  subpcena  to  witnesses  in 
actions  at  la\v.(l) 


Justices. 


jNIagistratcs  have  not,  in  general  any  authority  to  compel  the 
attendance  of  witnesses  for  the  purpose  of  a  summary  trial,  except 
under  the  special  provision  of  acts  of  parliament.  When  a  statute 
requires  justices  of  peace  to  take  the  examination  of  persons 
bringing  a  prisoner  before  them  on  suspicion  of  felony,  it  inciden- 
tally gives  them  a  power  to  examine  upon  oath,  and  to  summon 
by  their  warrant  any  other  persons  who  appear  to  be  material  wit- 
nesses for  the  prosecution,  to  come  before  them  and  give  evidence. 
And  it  may  be  laid  down  as  a  general  rule,  that  whei-ever  n)agis- 
trates  are  authorized  by  act  of  parliament  to  hear  and  determine, 
or  to  examine  witnesses,  they  have  incidentally  a  power  to  take 
the  examination  on  oath. (2)  (n) 


Conrts martial.  Witnesses,  who  neglect  to  attend  on  courts  martial,  after  being 
duly  summoned,  are  liable  to  be  attached  in  the  court  of  King's 
Bench,  &c.  as  if  they  had  neglected  to  attend  atrial  in  some  crim- 

Commissioners  Inal  proceeding  in  that  court.  (3)  And  commissioners  of  inclosure, 
under  the  general  inclosure  act,  stat.  41  G.  3,  c.  109,  s.  33,  34, 
have  a  power  to  summon  in  writing  any  person  within  a  certain 
di.stance,  to  appear  before  them  and  to  be  examined;  and  if  the 
person  summoned  refuse  tn  appear,  he  will  be  subject  to  a  pen- 
alty. 

Witnesi  When  a  material   witness  resides   abroad,    or   is   going   abroad, 

abroad.  ,  i  i  •   i        i  ..... 

and  cannot  attend   at  the   trial,   the  party   requirmg   his  testunony 

may  move  the  coiu't  in  term  time,  or  may  apply  to  a  judge  in  va- 
cation, for  a  rule  or  order  to  have  him  examined  on  interrogato- 
ries de  bent  esse  before  one  of  the  judges  of  the  court,  if  the  witness 
reside  in  town,  or,  if  he  reside  in  the  country  or  abroad,  before  corn- 
Order  for  ex-  niissioners  specially  appointed  and  approved  by  both  parties. (4)  (6) 
The  rule   or   order    for  such    examination  cannot    be    obtained 


(1)  6  4.  c.  16.  s.  35.  purpose  of  levying  penalties  or  making 

(2)  Dalt.    Just.   c.    6.      Lamb.    517.  distresses. 

12  Rep.  131.     And   Bee  stat.    15   G.  3.         (3)  Stat.  55  G.  3.  c.  108.  s.  28. 
c.  39,  which  gives  such  power,  for  the         (4)  2  Tidd.  Pr.  860. 


(fl)  See  Note  41,  p.  31.     (A)  See  Note  42,  p.  32. 


Ch,  1.]         Of  the  Attendance  of  Witnesses.  15 

without  the  consent  of  both  parties,  as  the  depositions  are  only 
secondary  evidence.  Without  this  consent,  therefore,  the  court 
will  not  give  the  plaintiff  leave  to  examine  upon  interrogatories 
an  attesting  witness  to  a  deed,  or  to  give  the  examinaiion  in 
evidence  at  the  trial,  on  the  ground  that  tiie  witness  is  incapa- 
cilated  by  illness  from  atlending,  anrl  niilikely  ever  to  be  able  to 
attend,  though  it  appear  by  affidavit  that  the  defendant  had  at 
one  lime  admitted  the  execution  of  the  deed;  nor  will  the  court, 
on  this  ground,  grant  a  ruh;  for  dispensing  with  the  attendance 
of  the  wiiness.(l)  And  though  the  cnm-t  will  not  compel  tho 
oih?r  party  to  consent,  yet,  if  necessary,  it  will  assist  the  |)arly 
applying  by  putting  ofF  the  trial  (that  there  may  be  an  opportuni- 
ty of  filing  a  bill  in  e(]uity,)  until  the  consent  is  obtained,  or  the 
witness  retin'ns;  an(f  if,  after  all,  tho  defendant  should  refuse, 
the  court   will  not  give  him  judgment  as   in   case   of  nonsuit. (2) 

When    a    partv,  after   obtainine:  leave    by   consent   examines    wit-      ?^^  .  ®''" 

'        ^  '  .  .  "^  .  .  aimnaljon. 

nesses  abroad  on  depositions,  he  will  not  be  entitled  to  any  al- 
lowance, in  the  taxation  of  costs,  for  the  expense  of  taking  the 
depositions,  although  he  may  succeed  in  the  action.  (3)  The 
same  rule  prevails  in  the  court  of  chancery;  if  a  parly  applies 
to  that  court  for  a  commission  to  examine  witnesses,  he  must  pay 
the  expenses. 

Where  a  cause  of  action  has  arisen  in  India,  or  any  offence  has  Witnesses  in 
been  committed  there,  which  is  tried  in  this  country,  the  evidence 
(il  witnesses  resident  in  India  may  be  obtained  in  the  manner 
prescribed  by  stat.  13  G.  3,  c.  G3,  s.  40,  44.  (4)  The  evidence  of 
witnesses  in  India  may  also  be  obtained,  in  support  of  a  bill  for 
a  divorce  in  parliament,  by  the  provisions  of  stat.  1  G.  4,  c  101; 
and  in  the  case  of  a  prosecution  for  an  offence  committed  a- 
broad  by  any  person  employed  in  the  public  service,  the  evidence 
of  witnesses  resident  abroad  may  be  obtained  in  the  mode  point- 
ed out  by  stat.  42  G.  3,  c.  85.(5)  The  stat.  54  G.  3,  c.  15,  which 
was    passed  for  the    purpose  of  facilitating  the   recovery   of  debts 

(1)  Jones  V.  Brewer,  4  Taunt.  47.  (3)    Stephens   v.     Crichton,  2    East, 

(2)  Furly    v.    Newnham,    2     Doug.     259.     Taylor  v.    Roy.  Ex.   Ass.   Comp. 
419.     Mostyn  v.    Fabrigas,    Covvp.    174.     8  East,  39.S. 

Calliard    v.    Vaughan,    1    Bos.    &    Pull.         (4)    Grillard  v.    Hogue,   1    Brod.    & 

211.     As  to  to  the  admissibility  of  depo-  Bing.  519. 

eitions  on  interrogatories,  see  infra,  part         (5)  R.  v.  Jones,  8  East,  31. 

2,  c.  4,  8.  2. 


]G  Of  the  Attendance  of  Witnesses,  [Ch.  I. 

in  the  courts  of  law  in  New  South  Wales,   piesciihes  the  mode  of 
obtaining  tiie  affidavits  of  witnesses,  resident  in  this  country,  and 
makes  them  equivalent  to  viva  voce  proof  in  open  court,  or  to  ex- 
aminations under  conunissions. 
Material  wit  If  the   defendant    is  unable  to   proceed   to   trial,    on  account  of 

lU'ss  nbseiU.  ...  ,  ,  ^     . 

the   abstiuce    ol   a  niatenal    witness,    he    may    move   the   court   m 

term-liaio,  or  apply  to  llio  in(!'2;e  in  vacation,  on  an  affidavit  of  the 

facts  to    put   off  the   trial  till    the   next   term;  or    in   the  Common 

Motion  to  put    Plaa?,  if  necessarv,  to  a  more  distant  period.(l)      An  application 

off  trial.  n'  •    I  "i  II  •     •  •     •  r 

to  put  orr  a  trial  beyond  the  existing  sittings,  or  h-oin  sittings 
to  sittings,  is  not  allowed  on  the  pari  of  the  plaintiff;  for  he  has 
the  power  at  any  time  of  withdrawing  the  record;  if  he  is  not 
prepared  to  try  the  cause.  But  where,  from  the  sudden  indis- 
position of  a  witness,  who  may  be  able  to  attend  in  the  course 
of  a  day  or  two,  or  for  any  other  temporary  reason,  the  plain- 
tiff is  prevented  from  trying  his  cause  in  its  order  in  the  paper, 
yet  has  ground  to  believe  that  he  shall  be  able  to  try  before  the 
sittings  are  over,  it  would  be  too  much  to  make  him,  in  such  a 
case,  withdraw  his  record;  and  a  judge  at  nisi  juriKS  will  there- 
fore make  an  order  for  the  trial  to  stand  over,  till  the  witness  is 
By  plaintiff,  ijkely  to  attend. (2)  It  is  a  rule  in  the  court  of  Common  Pleas, 
that  the  trial  of  a  cause  can  never  be  put  off  on  the  consent  of 
the  parlies  and  counsel,  at  the  sittings  at  nisi  prius^  but  tho 
plaintiff  must  either  proceed  to  try  or  withdraw  his  record.  (3) 

Before  the  court  will  consent  to  put  off  the  trial  on  account 
of  the  absence  of  a  material  witness,  it  requires  to  be  satisfied 
that  injustice  would  be  done  by  refusing  the  application,  and 
that  the  parly,  who  makes  the  ap|}lication,  has  not  conducted 
himself  unfairly,  nor  been  ihe  cause  of  any  improper  delay. (4) 
By  defendant,  'j'jjg  ^ule  will  not  be  granted  to  the  defendant,  after  he  has 
pleaded  a  sham  plea,  by  which  a  trial  has  been  lost,  (unless  he 
consent  to  pay  the  money  into  court;) (5)  nor,  where  the  testimony 
of  the  absent  witness  is  intended  to  set  up  an  odious  defence, 
(as,    that  the   i)laintiff   is   slave  to   the    defendant,   and  therefore 

(1)  Pr.    Reg.    398.     Tidd     Pr.   831.         (3)   2  Taunt.  221. 

See   form   of  affidavit   in   Tidd.     App.  (4)  Saunders   v.  Pitman,    1   Bo».    & 

812.  Pull.  33. 

(2)  Ansley  v.  Birch,   3  Campb.  N.  P.  (5)  Tidd.  Pr.  831. 
C.  833,  by  Lord  Ellenborough. 


Cli.  2.]         Of  Incompetenaj  of  Witnesses,  ^c.  17 

cannot  recover  in  ihe  action,  or  that   he   is   an   ahen   enemy,   &c. 
(1);  nor  will  it  grant  the  rule    for   the    pur[)Ose  of  giving   the   de-  - 

fendant  an  op])ortiinity,  which  he  has  once  lost  hy  his  own  neg- 
lect, of  applying  to  a  court  of  equity  for  a  coiinnission.  (2) 

When  a  motion  is  ahout  to  be  made  to  a  judge  at  nisi  prius,  Affidavit, 
for  putting  off  the  trial  of  a  cause  on  account  of  the  absence  of 
a  witness,  notice  should  first  be  given  to  the  })laintiff's  attorney, 
with  a  copy  of  the  intended  affidavit.  This  affidavit  ought  regu- 
larly to  be  made  by  the  defendant  himself;  but  if  he  is  abroad 
or  out  of  the  way,  it  may  be  made  by  his  attorney  or  a  third 
person.  (3)  The  affidavit  generally  states,  that  the  jierson  absent 
is  a  material  witness,  without  whose  testimony  the  defendant 
cannot  safely  proceed  to  trial;  that  he  has  endeavored  without 
"sffect  to  get  him  subpoenaed;  but  th;it  he  is  in  hopes  of  [)rocuring 
his  future  attendance.  (4)  (a) 

CHAP.  II. 

Of  the  Incompetency  of  Witnesses  from  Want  of  Under- 
standing, 

When   a    witness  appears,   he   must  be   regularly   sworn,  un- Exceptions 
I  ....  ,  ,  .  / » \  1      I  to  witness, 

less  an   objection  is   made  to   Ins  conjpetency;  [b)  and    the  course 

of  proceeding  is,  that  the  j^arty,  who  objects  to  the  witness, 
should  state  all  his  objections  at  the  same  time,  in  order  to  pre- 
vent unnecessary  delay.  (5)  An  exception  to  the  credibility  of 
a  witness  cannot  exclude  him  from  being  sworn.  The  excep- 
tion of  kindred,  for  examjjle,  ahhough  it  is  a  good  cause  of 
challenge  against  a  jm'or,  is  not  an  objection  to  the  competency 
of  a  witness;  a  father  is  a  comjietent  witness  for  or  against  his 
son,  and  a  master  for  his  servant,  or  a  servant  for  his  master. 
Such  exce[)tions  may  affect  the  credibility,  but  they  do  not  affect 
the  competency  of  witnesses. 

(1)  Robinson  V.Smyth,  1  Bos.  &  Pul.  (4)  See   form    of  affidavit,  Tidd,  Pr. 
454.  Appx.  312. 

(2)  Cailiard  v.    Vaughan,  1    Bos.  &  (5)  Lord  Lovat's  case,  9  St.  Tr.  652., 
Pull.  212.  fol.  ed.     18  Howell's  St.  Tr  609  S.  O. 

(3)  Peake,  N.  P.  C.  97. 


(a)  Seo  Note  43,  p.  41.     (6)  See  Note  44,  p.  58. 

Vol.  I.  3 


18  Of  In  CO  mpeten  cij  of  Witn  tsscs  [  C  h .    2. 

As  it  is  the  province  of  the  jury  to  consider  what  degree  of 
credit  ought  to  be  given  to  evidence,  so  it  is  for  the  court  alone 
to  determine,  whether  a  witness  is  competent,  or  the  evidence 
admissible.  Whether  there  is  any  evidence,  is  a  question  for 
the  judge:  whether  it  \s  sufficient,  is  a  question  for  the  jury.  (l)(d) 
And  whatever  antecedent  facts  are  necessary  to  be  ascertained, 
for  the  purpose  of  deciding  the  question  of  competency  or  admis- 
sibility of  evidence,  as,  for  example,  whether  a  child  understands 
the  nature  of  an  oath — or  whether  the  confession  of  a  prisoner 
was  voluntary — or  whether  declarations,  offered  in  evidence  as 
dying  declarations,  were  made  under  the  immediate  apprehension 
of  death — these,  and  other  facts  of  the  same  kind,  are  to  be  de- 
termined by  the  court,  and  not  by  tiie  jury. 

Canteiofin-  By  the  law  of  England  the  objections  to  the  competency  of 
competency,  yyjjnesses  are  fourfold.  The  first  ground  of  incompetency  is 
want  of  reason  or  understanding:  a  second  gioimd  is  defect  of 
religious  principle;  a  third  ground  arises  from  conviction  of  cer- 
tain crimes,  or  from  infamy  of  character:  the  fourth  and  most 
general  cause  of  incompetency  is  interest.  Eillier  of  these  ground* 
of  incompetency  will  exclude  the  witness  from  giving  any  kind  of 
evidence.  "  I  find  no  rule  less  comprehensive  than  this,"  said  Mr. 
Justice  Lawrence,  in  the  case  of  Jordaine  v.  Lashbrooke(2),  "  that 
all  persons  are  admissible  witnesses,  who  have  the  use  of  their  rea- 
son, and  such  religious  belief  as  to  feel  the  obligation  of  an  oath, 
who  have  not  been  convicted  of  any  infamous  crime,,  and  who  are 
not  influenced  by  interest."  («) 

An  inquiry  into  these  several  causes  of  incompetency   forms  tl).e 
subject  of  the  four  following  chapters. 

First,  as  to  incompetency  far  want  of  understanding. 

Idiott  &c.  Persons,  who  have  not  the  use  of  reason^  labor  under  a  phy- 
sical disqualification,  and  from  their  infirmity  are  utterly  iQcaj)able 
of  giving  evidence.  Insane  persons,  idiots,  and  lunatics  under  the 
influence  of  their  malady,  are  in  this  situation.  (3)(/) 

(1)  By  Duller  J.  Comp.  of  Carpenters,         (2)  7  T.  R.  610. 
&c.  V.  Haywood,  Doug.  775.     Hull.    N.         (3)  Co.  Lit.  6   b.     ff  Com.  Dig.    tit. 
P.  293.  Teatmoigne,  A.  1. 


(d)  Sm  Note  46,  p,  68.     («)    See  Note  46,  p.  58.      (/)  See  Note  47,  p.  6©. 


Ch.  2.]         from  fVant  of  Understanding.  19 

But  lunatics^  and  other  persons  though  subject  to  temporary 
fits  of  insanity,  may  yet  be  witnesses  in  their  iucid  intervals,  if 
<hey  have  sufficiently  recovered  their  understandings.  (1)  (g-) 
And  a  person  born  deaf  and  dunnb  is  not  on  that  account  incompe- 
tent, but,  if  lie  has  sufficient  understanding,  imy  give  evidence  by 
signs  with  the  assistance  of  an  interpreter.  {2){h) 

A  witness  must  not  only  have  a  competent  share  of  reason,  Children, 
but  also  know  the  nature  of  an  oath.  Children,  therefore,  who 
are  not  able  to  understand  its  moral  obligation,  cannot  be  ex- 
amined. (3)  There  seems  to  be  no  precise  age  fixed,  at  which 
infants  are  excluded  from  being  witnesses.  At  one  time,  indeed, 
their  age  was  considered  as  the  criterion  of  their  competency; 
and  it  was  a  general  rule,  that  ^lone  could  be  admitted  under  the 
age  of  nine  years,  very  few  under  ten  (4);  which  was  in  some 
measure  donying  them  the  protection  of  law  against  secret  acts 
of  violence.  (5)  A  more  reasonable  rule  has  been  since  adopted: 
and  the  admissibility  of  children  is  now  regiiiated,  not  by  their  age» 
but  by  their  apparent  sense  and  understanding,  (i)  In  Brazier's 
case,  on  an  indictment  for  assaulting  an  infant  of  five  years  of 
age  with  intent  to  ravish  her,  it  was  agreed  by  all  the  judges, 
that  children  of  any  age  migbt  be  examined  on  oath,  if  capable 
of  distinguishing  between  good  and  evil:  but  that  they  cannot 
be  examined,  in  any  case,  without  oath  (6)(J)  This  is  now  the 
established  rule  in  all  cases,  criminal  as  well  as  civil,  and  whether 
the  prisoner  is  tried  for  a  capital  offence,  or  for  one  of  an  Inferior 
nature.  When  the  child  has  appeared  not  sufficiently  to  under- 
stand the  nature  and  obligation  of  an  oath,  judges  have  often 
thought  it  necessary,  for  the  purpose  of  justice,  to  put  off  the 
trial  of  the  prisoner,  directing  that  the  child  in  the  mean  time 
should  be  properly  instructed.  If  ihe  jury  is  sworn,  and  the  pri- 
soner is  put  upon  his  trial  before  the  incompetency  of  the  witness 
is  discovered,  the  proper  course  is  not  to  discharge  the  jury,  but  to 
direct  an  acquittal.  (7)(A:). 

(1)  Com.  Dig.  lit.    Testtnoigne,  A.  1.         (5)   null.  N.  P.  293. 

(2)  Ruston's  case,    1  Iviaeli,  Cr.    C.         (6)    Brazier's   case,  1779.      I    Euut. 
455.  P.    C.    443,    444.      Bull.    N     P.     293, 

(3)  Com.  Dig.   tit.  Tostmoigne,  A.  1.  1  Leach,   Cr.    C.  237.     4   Black.    Com. 
Bull.  N.  P.  293.     Giib.  Ev.  130.  214. 

(4)  R.  V.   Travers,  2    Slra.  700,    and  (7)   Pv.    v.  AVado,    I  Ry.  Mo.    Cr.  C. 
cases  in    East.    P.  C.    442,  S.   P.  1  Hal.  86. 

P.  C.  302.     2  Hal.  P.  C.  278. 


ig)  See  Note   48,   p.    60.     (A)  See   IS'ote  49,    p.   61.     (i)  See  Note   50,    p.    61. 
(j)  See  Note  51,  p.  61.     (fc)  See  Note  32,  p.  61. 


20 


Of  In  compt  tt  n  cy  of  Wit  n  esses 


[Ch. 


o. 


Statment  by 
children. 


Confirmatory 

evidence. 


If  a  child  is  too  young  to  be  sworn,  it  follows  as  a  necessary 
consequence,  that  [  any  account,'  wliicli  it  may  iiave  given  to 
others,  ought  not  to  he  admitted.  On  an  indictment,  therefore, 
for  a  rape  on  a  child  five  years  old,  where  the  child  was  not 
examined,  biit  an  account  of  what  she  had  told  her  mother, 
about  three  weeks  afior  the  transaction,  was  given  in  evidence 
by  the  mother,  and  the  jury  convicted  the  prisoner,  principally, 
as  was  supposed,  on  that  evidence:  the  judges,  on  a  case  re- 
served for  their  opinion,  thought  the  evidence  clearly  inadmissible, 
and  the  prisoner  was  accordingly  pardoned.  (1)* 

"  Where  the  evidence  of  children  is  admitted,"  says  Sir  William 
Blackstone  (2),  "  it  is  much  to  be  wished,  in  order  to  render  their 
evidence  credible,  that  there  should  be  some  concurrent  testi- 
mony of  lime,  place,  and  ciicumstances,  in  order  to  make  (;ut 
the  fact;  and  that  the  conviction  should  not  be  grounded  singly 
on  the  unsupported  accusation  of  an  infant  under  years  of  dis- 
cretion." It  seems,  however,  impossible  to  lay  down  any  general 
rule  on  this  subject,  applicable  to  all  cases.  A  prisoner  may  be 
legally  convicted  on  such  evidence,  alone,  and  unsupported;  and 
whether  the  account  of  the  witness  requires  to  be  corroborated 
in  any  part,  or  to  what  extent,  is  a  question  exclusively  for  the 
jury,  to  be  deternsined  by  them  on  a  review  of  all  the  circum- 
stances of  the  case,  and  especially  of  the  manner  in  which  the 
child  has  given  his  evidence.  The  evidence  may  be  so. circum- 
stantial, so  plain  and  clear,  and  so  free  from  all  mixture  of  par- 
tiality and  ill  will,  as  to  leave  no  reasonable  doubt  of  the  prisoner's 
guilt,  although  it  stands  unsupported  by  other  witnesses. 


CHAP.  III. 

Of  Incompetency  froin  Defect  oj  Religious  Principle. 

The  second  ground  of  incompetency,  which  has  been  mention' 
ed,  is  defect  of  religious  principle. 

(1)  R.  V.   Tucker,    ISOS.    MS.     See     p.  19.     1  Alk.  29. 
also  R.  V.   Brazier,  1     East,  P.  C.    443,         (2)  4  Com.  214. 


*  By  tlie  law  of  Scotland,  children  cannot  be  examined  on  oath  under  the  age  of 
twelve:  but  their  declarations,  it  seems,  may  be  taken  without  oath,  and  left  to  the 
consideration  of  lhi2  jury.  See  Burnett  on  the  Crim.  Law  of  Scotland,  p.  391.,  and 
Hume's  Comment,  on  the  Law  of  Scotland,  vol.  ii.  33 /. 


Ch.  S.]     from  Defect  of  Rel'iriou.s  Princijjle.  21 

All  witnesses,  before  lliey  are  examined  in  our  coiirls  of  jus-  Onth. 
tice,  are  required  to  lake  an  oath,  hy  whicli  ihey  appeal  to  the 
Supreme  Being  for  ilie  truth  of  ihe  evidence  uhicli  they  are  about 
to  give.  This  necessarily  implies  a  belief,  thai  by  the  laws  of 
God  truth  is  enjoined,  and  falsehood  punished.  It  is  not  suffi- 
cient, that  a  witness  believes  himself  bound  lo  speak  the  truth 
from  a  regard  to  character  or  to  the  common  interest  of  society, 
or  from  fear  of  punishment.  (1)  Sucli  motives  have  indred  their 
influence,  and  may  come  in  aid  of  the  relii;;ious  oliligation,  luil 
they  are  of  a  nature  so  cai)rieiou3  and  infirm,  and  so  liable  to  be 
perverted,  as  to  afford  little  or  no  security  for  the  observance  of 
truth.  Our  law,  therefore,  like  that  of  most  other  civilized  coun- 
tries, requires  a  witness  to  believe  that  there  is  a  God  and  a 
future  state  of  reward  and  punishment,  and  that  by  Inking  the 
oath  he  imprecates  the  Divine  vengeance  upon  himseli,  if  his 
evidence  shall  be  false.  (2)* 

Atheists,  and  such  infidels  as    profess  not  any    religion,  that  can  Atheists, 
bind   their   consciences    to   speak    the    truth,    are    excluded    frotn  ^''^'^'^'s. 
being  witnesses.  (-3)      Lord  Coke,    indeed,'  says  generally,   that  an 
infidel  cannot  be  a  witness  (4),    in  which   denomination  he  intend- 
ed to  comprise  Jews  as  well  as  Heathens  (5):  and    INIr.  Seijeant 
Hawkins  thought   it  a  sufficient   objection  to  the   competency  of  a          • 
witness,   that   he  believed   neither   the   Old    nor  the  New    Testa- 
ment. (6)     Lord  Hale,  however,  was  of  a  different   opinion,  and 
strongly  points   out   tiie   unreasonableness   of    excluding    indiscri- 
minately all  Heathens  from  giving   evidence,  as  well  as  the  incon- 
sistency of  compelling  them  to   swear  in  a  form,    which  they  may 
possibly  not   consider  binding.      "  It  were  a  very   hard  case,"  he 


(1)  Ruston's   case,    1  Leech,    Cr.   C-  43.     Gilb   Ev.  129. 
455.  (4)  Co.  Lit.  6.  b. 

(2)  White's   case,    1    Leach,  Cr.  C.         (5)  2  Inst.  50(3.     3  Inst.    165.    1  Atk. 
482.      lAtU.  19, 48.  43.     Wiiies  Rep.  541. 

(3)  Bull.  N.  P.    292.      I  Atk.  40,  45,  (6)   Hawk.  P.  C.  b.  2,  c    46,  s.  148. 


*  Peers  of  parliament,  when  examined  as  witnesses,  take  the  judicial  oath  in  the 
common  form,  as  other  persons.  See  a  note,  on  this  subject,  iu  2  Howell's  St. 
Tr.  772. 

The  practice  formerly  was,  not  lo  examine,  upon  oath,  witnesses  called  on  the 
part  of  a  prisoner,  in  trial  for  treason  or  felony.  This  practice  was  altered  in  case 
of  treason,  by  st.  7,  W.  S.  c-  3,;  and  in  cases  of  felony,  by  st.  1  Ann.  st.  3.  c.  9. 


-2  Of  Incomptlency  of  Witnesses  [Ch.  3. 

says,  "  if  a  murder,  committed  here  in  presence  only  of  a  Turk  or 
a  Jew,  should  be  dispunishable,  because  such  an  oath  should  not 
be  taken,  which  llie  witness  holds  binding,  and  cannot  swear 
otherwise,  and  possibly  niighl  think  himself  under  no  obli- 
gation, if  sworn  according  to  the  usual  style  of  the  courts  of 
England."  (1)  All  doubts  upon  the  subject  are  now  removed. 
In  the  celebrated  case  of  Omichund  and  Barker,  (which  came 
before  Lord  Chancellor  Hardwicke,  assisted  by  Lee  C.  J.,  Willes 
C.  J.,  and  Parker  C.  B.)  it  was  solemnly  decided,  that  the  de- 
positions of  witnesses  professing  the  Gentoo  religion  who  had 
been  sworn  according  to  the  ceremonies  of  their  religion  under 
a  comnnssion  out  of  Chancery,  ought  to  be  adn)itted  in  evidence.  (2) 
And  it  may  now  be  considered  as  an  established  rule,  that  in- 
fidels of  any  other  country,  who  believe  in  a  God,  the  avenger 
of  falsehood,  ought  to  be  received  here  as  witnesses;  but  infi- 
dels, who  believe  not  that  there  is  a  God,  or  a  future  state  of  re- 
wards and  punishments,  cannot  be  admitted  in  any  case.  (3)(/) 

Tatm  of  With  regard    to    the    ceremony    or    form    of  administering   an 

fiweariug.  i        i        r  •        i     •         i         i       i  i  •    i  i        i 

oath,  tijat  lorm   is  obviously    the  best  which    most  clearly  conveys 
the  meaning  of   the   oath,    and   most   forcibly   impresses   its  obli- 
gation. (4)      And  since   this   is  not  an   essential   part  of  the   oath, 
,  but   entirely    of    human    institution,    and   has    varied     in    different 

times  and  countries,  though  the  substance  of  the  oath  must  be 
the  same  in  all,  it  is  obviously  necessary  to  allow  men  to  swear 
according  to  the  peculiar  ceremony  of  their  religion,  that  is,  in 
the  manner  which  they  consider  binding  on  their  conscience. 
"  Possibly,"  says  Lord  Hale,  "  they  may  not  think  tiiemselves 
under  any  obligation,  if  sworn  according  to  the  usual  style  in 
the  courts  of  England."  (5)  Jews  have  therefore  been  sworn  in 
our  courts,  from  the  earliest  time,  on  the  Pentateuch  (6);  and 
no  distinction  appears  ever  to  have  been  taken  between  their 
swearing  in  a    civil  or  in  a  criminal  case.      In   an  old   case,  where 

(1)  2  Hale,  P.  C.  229.  (4)  For  the   description  of  the  judi- 

(2)  Omichund    and   Barker,    1    Atk.      cial   oath,   by    our   old    writers,    Fleta, 
21.     I   Wils.  S4,   S.    C.     Willes,    538,      Kr.icton,  BriUon:  see  1  Atk.  22. 

S.  C.  (5)  2  H.  P.  C.  279.     1  Atk  42.  48- 

(3)  Willes,  549.     1    Atk.   45.      Fa-         (6)   I   Atk-    40,     42-      Willes,   648. 
china  v.    Sabine,  Str.    1104.     Morgan**     C'owp.  389. 

case,  1  Leach,  Cr.  C.  64. 


(/)  See  Note  58,  p.  62. 


Cl\    3.]        from  Defect  of  Religious  principle.  23 

a  witness  refused  to  be  sworn  in  the  usual  form,  by  laying  liis 
right  hand  on  the  book  and  kissing  it  afterwards,  Giin  C  J.  ruled, 
that  he  might  be  sworn,  by  having  the  book  laid  open  before 
him  and  holding  up  his  right  hand.  (1)  ^'  In  uiy  opinion,"  said 
the  Chief  Justice,  "he  has  taken  as  strong  an  oath  as  any  other 
witness."  On  the  trial  of  some  of  the  rebels  at  Carlisle  in  the 
year  1745,  a  witness  being  sworn  in  the  same  manner,  by  holding 
up  his  hand,  the  point  was  referred  to  the  judges  for  their  opinion, 
and  they  all  agreed  in  thinking  the  witness  legally  sworn.  (2) 
There  is  at  this  day  a  sect  in  Scotland,  who  hold  it  to  be  idolatry 
*to  kiss  the  book;  but  their  own  form  of  swearing  is  much  more 
solemn.  (3)  Common  sense  requires,  that  witnesses  should  be  al- 
lowed to  swear  in  that  particular  form  which  they  consider  binding 
on  their  conscience.  A  Quaker  affirms  the  truth  of  what  he  slates. 
A  Jew  swears  on  the  Pentateuch,  with  his  head  covered.  A  Gen- 
too  touches  with  his  hand  the  fool  of  a  Braimin.  Mahometans 
are  sworn  on  the  Koran  (4):  and  upon  the  same  principle,  all  per- 
sons ought  to  be  sworn  according  to  the  ceremonies  of  their  pecu- 
liar religion.  (5)  Whatever  be  the  form,  the  meaning  of  the  oath  is 
the  same.  It  is  an  appeal  to  Heaven,  calling  upon  God  to  witness 
what  we  say,  and  invoking  his  vengeance,  if  what  we  say  be 
false,  (m) 

The    most    correct    and     proper    time     for    asking    a    witness,  Examination 

whether   the   form   of  administering  the   oath   is  such  as   will  be  P""^^'"."* '® 

.  ...        swearing. 

binding   upon    his   conscience,   is    previous   to  the   administration 

t-f  the  oath.  But  as  it  may  occasionally  happen,  that  the  oath 
is  administered  in  the  usual  form,  before  the  attention  of  the 
court  or  of  tiie  counsel  is  directed  to  it,  that  question  may  pro- 
perly be  afterwards  asked.  And  if,  in  answer  to  such  question, 
the  witness  shall  declare  in  the  affirmative,  namely,  that  he  con- 
siders the  oath,  taken  by  him,  to  be  binding  upon  bis  conscience, 
it  would  be  irrelevant  to  ask  further,  whether  there  be  any  other 
mode  of  swearing    that  would    be  more    binding    than  that    which 

(1)  Dutton  V.  Colt,  2  Sideaf.  6.  (4)  Morgan's  case,  1    Leach,  Cr.    C. 

(2)  By  Gold  J.  in  Mildrone's  case,  1  64.,  by  Gold  J.  delivering  the  opinion  of 
Leach,  Cr.  C.  A^.9.  Mee  v  Reed,  Peak  all  the  judges.  Cowp-  390.  Fachina  v. 
N.  P.  C.   22,  S,P.  Sabine,  2  Str.  1104. 

(S)  Lord  Mansfield,  Cowp.  390.  (5)  Omichnnd  and  Barker,  1  Atk.  21. 


(m)  See  N<rte  84,  p.  62. 


^i-  Of  Incompetency  of  Witnesses  [Ch.  .'5. 

Iins  been  iiM.-d.  (I)  If  the  u  iii-css  snys,  lie  considers  the  oath  to  be 
bindint;  upon  his  fonsciencc,  he  affirms,  in  effect,  that  in  taking 
that  oath  he  has  called  his  God  to  witness,  what  he  shall  say  will 
be  the  ti-ulh,  and  lli:;t  he  has  imprecated  the  Divine  vengence  itp- 
on  his  head,  if  what  he  sliall  afterwards  say  is  false;  and  when  tiiis 
is  done,  ii  would  be  perfectly  unnecessary  and  irrelevant  to  ask  any 
further  questions.  (2)  k^uch  an  acceptance  of  the  oath  not  only  • 
iniposes  upon  the  witness  all  its  religious  obligations,  but,  should 
he  violate  its  sanctions,  subjects  him  also  to  the  temporal  penalties 
consequent  on  the  crime  of  perjury .  (3) 

Exanunriiion  The  proper  mode  of  examining  a  witness,  for  the  purpose  oftry- 

as  to  o|Jinioiis.  j^^^  j^j^  coin]ietency  in  religious  principle,  is  not  to  question  him  as 
to  his  particular  opinions,  but  to  enquire  generally,  whether  he  be- 
lieves in  the  existence  of  God  and  of  a  future  state.  In  a  case  be- 
fore iVFr.  Justice  Buller,  where  a  witness,  wb.o  had  been  swoin  on 
the  Gospels,  was  asked,  whether  he  believed  in  the  Gospels  on 
which  he  had  been  sworn,  the  question  was  objected  to,  and  is  said 
'to  have  been  overruled  by  the  court.  (4)  This  question  appears  to 
have  been  put  after  the  swearing  in  chief,  though  before  the  exam- 
ination of  the  witness.  If  it  had  been  asked  before  the  witness  was 
sworn  at  all,  it  seems  that  it  would  have  been  reguhir;  for  if  he  had 
not  believed  in  the  Gospels,  how  could  he  have  been  efleclually 
sworn  upon  them?  The  administration  of  an  oath  in  such  a  case 
would  be  entirely  nugatory;  and  evidence  wou'd  be  given  with- 
out any  religious  sanction,  on  the  bare  assertion  of  a  witness.  If 
the  law  requires  an  oath  to  be  administered  in  a  certain  form,  and  a 
witness  believes  not  in  any  form  of  religion,  the  consequence  must 
necessarily  be,  that  he  cannot  be  sworn.  (5)(n) 

(1)  Resolution  of  the  jtulges  deli-  sumed  a  false  name,  and  swearing  in 
vered  by  llie  Lord  Chief  .luslice  in  tlie  the  common  form  upon  the  Go-:pel9, 
proceeding  on  the  Bill  of  Pains  and  but  diseovered  after  the  trial  to  bo  a 
Penaltifirt,  Aui?.  24,  1820.  In  the  case  Jew,  is  not  .i  uronnd  for  a  new  trial, 
of  the  witness  Gargiulo,  p.  IIG,  of  the  Sells  v.  Iloare,  .3  Brod.  &  Binj.  432. 
printed  evidence  2  Brod.  &  Bing.  (4)  R.  v.  Taylor,  Peake,  N.  P.  C  11. 
284.  (5)    A  tract    has    been  written  on  thin 

(2)  By  the  Lord  Chief  Justice,  on  subject  by  Mr.  Baron  Smith,  one  of 
the  same  occasion  the  Barons  of  the  Court  of  Exchequer    in 

(3)  The  fact  of  a  witness  having   aa-     Ireland. 

(n)  See  Note  55,  p.  63. 


\ 


Ch.  3.]        from  Defect  of  Religions  Principle.  25 

There  appears  to  be  no  good  reason  for  not  aclmitting  the  so-  Quakers, 
lemn  affirmation  of  a  Qiiakei'  in  all  cases,  as  well  as  tlie  oath  of  a 
Jew  or  Gentoo,  or  any  other  [)erson,  who  thinks  himself  really 
bound  by  the  mode  and  form  in  which  he  attests.  Before  the 
Revolution,  Quakers,  who  refused  to  take  a  legal  oath,  were  treat- 
ed as  obstinate  offenders,  and  subject  to  penalties.  (1)  But  these 
hardships  were  removed  by  the  toleration  act  (2),  which  first  allow- 
ed them  to  make  a  declaration  of  their  fidelity  to  the  state  instead 
of  taking  an  oath  of  allegiance,  and  exem|)tcd  them  from  all  pains 
and  penalties  on  their  making,  if  required,  certain  other  declara- 
tions there  prescribed.  And  by  another  statute,  which  passed 
about  six  years  after(3),  their  solemn  affirmation  in  courts  of  jus- 
tice is  admitted  to  have  the  same  eflect  as  an  oath  taken  in  the 
usual  form,  excepting  only  that  on  such  affirmation  they  are  not 
pern)itted  to  give  evidence  in  criminal  cases. (o)  'Jhis  exception 
against  the  testimony  of  Quakers  in  criminal  prosecutions,  which 
Lord  Mansfield  has  called  a  strong  prejudice  in  the  minds  of  the 
great  men  who  introduced  the  statute(4),  has  been  continued  in 
the  several  succeeding  acts  of  the  legislature  on  the  subj'3ct.(5) 
The  soundness  and  propriety  of  such  a  distinction  between  crimi- 
nal and  civil  cases  may  well  be  questioned;  unless  it  can  be  shown 
that  evidence  requires  less  sanction  in  civil  cases  than  in  criminal, 
or  that  Quakers,  in  making  their  solemn  affirmation,  do  not  consid- 
er themselves  under  a  strict  religious  obligation  to  speak  the  truth. 
The  affirmation  of  a  Quaker,  as  Lord  Mansfield  observed  in  his 
excellent  judgment  in  the  case  of  Atcheson  against  Everett  (6),  is 
in  substance  the  same  as  an  oath;  the  form  oiily  is  diflerent;  an 
affirmation  is  a  most  solemn  appeal  and  attestation  to  God. 

The  legislature,  by  not  admitting  the  affirmation  of  Quakers 
in  criminal  cases,  must  be  understood  to  mean  causes  technically 
criminal.  (7)  They  may  be  received  in  penal  actions  ;  as,  in 
an  action  for  debt  on  the  statute  against  biibery  in  elections 
(8);     so,    on    a    motion    for    an    attachment    for     non-perform- 

(1)  St.  13  C.  2,  c.  1.  (6)  Cowp  382. 

(2)  St.  1  W.  &  M.  c.  18,  s.  13.  (7)  Cowp.  391. 

(3)  St.  7  &  8  W.  3,  c.  34.  (8J    Atcheson      v.     Everett,     Cowp, 

(4)  Cowp.  390.  382. 
(6)  St.  8  G.  1,  c   6.     St.   22  G.  2,  c, 

46,  B.  36. 

(0)  See  IS'ote  56,  p.  63. 

Vol.  L  4 


26  Of  Incompetency  of  Witnesses,  ^c.  [Cli.  o. 

ance  of  an  a\vard(l).  or  on  a  motion  lo  quasli  an  appointment  of 
verseers(2);  these  proceedings  being  of  a  civil,  not  a  criminal 
nature.  But  in  all  cases  which  are  substantially  of  a  criminal  na- 
ture, the  affirmation  of  a  Quaker  is  inadmissible;  as,  in  an  appeal 
for  murder  (3),  though  it  is  in  form  a  civil  proceeding;  so  on  a  mo- 
tion for  an  information  for  a  misdemeanor(4),  or  on  exhibiting  ar- 
ticles of  the  peace  (5),  or  on  a  motion  for  non-performance  of  an 
order  of  Court(G).  Where  the  application  to  the  court  is  against 
a  Quaker,  his  affirmation  may  be  received  in  his  own  defence, 
though  the  proceeding  be  of  a  criminal  nature.  (7) 

It  has  been  observed  by  Lord  Mansfield (8),  that  Quakers  are 
at  present  under  some  hardship,  in  not  being  able  to  call  other  Qua- 
kers as  witnesses  in  their  defence,  on  a  charge  of  treason  or  felony; 
since,  in  these  cases,  witnesses  on  behalf  of  the  prisoner  are  to  be 
sworn,  before  they  can  give  evidence,  like  witnesses  for  the 
crown  (9);  and  no  exception  is  made  by  the  legislature,  in  order  to 
give  a  prisoner  the  benefit  of  a  Quaker's  testimony.  ()?) 

Excommuni-         It  has   been   frequently  laid  down,   that  persons  excommuni'- 
"*'°°'  cated  are  not  competent  witnesses,  because  it  is   supposed,  that 

those  who  have  been  excluded  from  the  church  are  not  under 
the  influence  of  any  religion.  The  authority  generally  referred 
to  m  support  of  this  rule,  is  a  dictum  of  Sir  Edward  Coke» 
in  the  case  of  the  Attorney  General  v.  Griffith  (10),  concerning 
the  oath  of  allegiance  required  of  Popish  recusants.  He  is 
there  reported  to  have  said,  "  By  the  statute  3  .T.  J,  c.  5,  every 
recusant  convict  is  to  be  exconmiunicated;  and  therefore  on  my 
circuit  I  do  not  admit  of  I  hem  for  witnesses  between  party  and 
party,  they  being  not  competent  witnesses."  On  the  authority 
of  this   dictum,  the  rule   has  been   comn)only   adojUed  by  writers 

(1)  Taylor  v.  ScoU,  cited  Cowp.  291.;  and  see  n.  (A)  ib.,  where  the  ca- 
394.      Powell     V.    Ward,     cited     Andr.     scs  on  this  subject  are  collected. 

200.  (7)   R.  V.  Shackliiiglon,  Andr.  201.  it. 

(2)  R.  V.  Turner,  2  Str.  1219.  R.   v.   Gardner,  2  Burr.   1117.       Cowp 

(3)  Castile    v.     Bainbridge,    2    Str.     SS3,  392. 

856.    Cowp.  392.  (8)  Cowp.  391. 

(4)  R.  V.  Wych,  2  Str.  872.  R  v.  (9)  St.  7  &  8  \V.  &  M.  c  3.  *.  I.  I 
Gardner,  2  Burr.  1117.  Ann.  st.  2,  c.  9,  s.  3. 

(5)  R.  V.  Green,  1  Str.  527.  (I0>  2  Bulslr.  155. 

(6)  Skipp     V.     Harwood,      VVilles. 


(p)  See  Note  57,  p.  64. 


Ch.  4.]  Of  Incompetency  from  Infimij.  *         27 

on  the  subject  of  evidence;    alihougli  the   reason,    upon   which  it 

is  supposed   to  have  been  founded,   would    in  the   present  day  be 

generally  exploded.      But   now,  by  a   lale  act  of  the  legislature, 

this  objection  has  been  entirely  removed.      The  stat.   53   G.  3.*|^-^''- 

c.  127,  s.  2,  3,  enacts,  that  no  sentence  of  excommunication  shall 

be  pronounced   by''ecclesiastical   courts  in  cases   of   contempt  or 

disobedience  to  their  order,  and  tiiat  persons  excommunicated  shall 

in  no  case  incur  any  civil  penalty  or  disability. 


CHAP.  IV. 

i 

Of  Incompetency  from  hfimy. 

A  THIRD  cause   of  incompetency  is  infamy  of  character,  pro- 
ceeding from  conviction  of  certain  offences. 

The  conviction  of  an  infamous  crime  followed  by  judgment, 
disqualifies  a  witness  from  giving  evidence  in  courts  of  justice. 
This  is  stricily  a  legal  objection,  to  be  supported  by  strict  legal 
proof;  and  nothing  less  than  a  conviction  will  disqualify.  Here 
again  is  another  striking  instance,  to  show  the  distinction  be- 
tween competency  and  credibility.  Witnesses  of  the  most  infa-  Competency 
mous  and  depraved  character,  though  not  credible,  may  yet  be  Credibility, 
competent;  and  it  frequently  happens,  that  a  witness  is  suffered 
to  give  evidence,  because  not  absolutely  disqualified  by  the  rules 
of  law,  though  at  the  same  time  he  may  be  far  lower  in  point 
of  credit  and  real  character,  than  another,  who  is  at  once  ex- 
cluded as  incompetent.  Writers  on  the  subject  of  evidence, 
therefore,  distinguish  between  the  infamia  juris  and  the  infamia 
facti.  Of  these  tests  of  infamy,  the  latter  may  destroy  the  cred- 
ibility of  a  witness;  but  it  is  the  former  only  that  can  destroy 
iiis  competency. 

In  treating  of  this  subject,  it  is  proposed  to  consider,  in  the 
first  section,  what  offences  incapacitate,  and  how  a  witness  may 
be  restored  to  his  competency:  in  the  second,  to  consider  the 
evidence  of  accomplices. 


2S  Of  Jncompelenrjj  from  Infdnnj.  [Cli.  4. 


Sect.   I. 

What    Offences    incapacitate;    and    of   the  Mode  of  restoring 
Competency. 

What  crimes  Therk  are  many  offences,  which  our  law  considers  such 
disqualify.  blemishes  on  th-;  tnoral  character,  as  to  incapacitate  from  giving 
evidence  in  courts  of  justice.  (1)  Of  this  kind  are  treason,  and 
every  species  of  the  crimen  falsi^  such  as  forgery,  perjury,  subor- 
nation of  perjury,  attaint  of  false  verdict,  (2)  and  other  offences 
of  the  same  description,  which  involve  the  charge  of  falsehood, 
and  affect  the  public  administration  of  justice.  (3) 

Felony.  The  whole  class  of  offences  which  come  under  the  denomination 

of  felony,  (4)  that  is,  all  offences  which  occasion  a  forfeiture  of 
lands  or  goods,  will  have  the  same  effect  in  rendering  a  witness 
incompetent;  though  it  is  obvious,  that  crimes  are  not  always 
punished  by  the  legislature  in  proportion  to  their  guilt,  and  there 
may  be  more  depravity  in  some  frauds,  which  are  not  punishable 
as  crimes,  than  in  some  kinds  of  felony.     By   the  common  law,  a 

Petit  larceny,  person  convicted  of  petty  larceny  was  not  a  competent  witness, 
because  the  offence  was  felony,  no  less  than  grand  larceny;  (5) 
but  by  Stat.  31  G.  3,  c.  35,  it  was  enacted,  that  no  person  should 
be  incompetent  by  reason  of  a  conviction  for  petty  larceny.  (6) 

Bribing  a  Some   Other  offences  also    make  a   vvitness   incompetent  after 

witness.  . 

conviction    and    judgment;    as   prEemunn-e,    barretry,(7)    or    the 

crime  of  bribing  a  witness  to  absent  himself  and  not  give  evi- 
ct) Gilb.  Ev.  126.     Bull.  N.  P.  291.  (3)  See     the    judgment   of    Sir  W. 

(2)   Co.  Lit   C  1).     Hawk.  b.  2,  c.  46,  Scott    in  the  case    of  Vilie  de  Varsovie 

B.  101.  Com.  Dig.  tit.  Testmoigne,  A.  5.  and  others,  2  Dodson's  Adm.  Rep.  174. 

2  H.    P.  C.    277.      Fortesc.   Hep.  209.         (4)  Co.    Lit.    6   b.     Com.    Dig.    ubi. 

Jones  V.  Mason,  2  Sir.   833.     Walker  v.  sup. 

Kearney,    2    Str.     1148.     Our    oirliest         (5)   2    H.    P.    C.    277.       Pendock   v. 

writers    notice    this    cause    of  disquiilifi-  Mackinder,    Willes'    Rep.    667;    where 

cation.  The  rule  of  the  Roman  law  the  authorities  on  this  point  are  col- 
was    the   same;  "Publico   judico    darn-  iected. 

nali,    et    non    in  integrum    restituti,  ad-         (6)  See  also  7  &  8  G.  4,  c.  29,  s.  2. 

mittendi    non   suntad  teslimonii   fidern."         (7)  R.  v.  Ford,  2    Salk.    690.     Bull. 

Dig.  lib.    22,  tit.   5,  do  Tostibua,  art.   3.  N.  P.    292.     See  Com.     Dig.    tit.    Test 

B   5.  moigne,  A.  5. 


Sect.  1.]       Of  Incompetency  from  I  njujny.  2-^ 

dence.(l)      A   witness  is  disqualified   by  aUaiiit    of  conspiracy  at  Conspiracy, 
the  suit  of  the  king  (2),  that  is,  of  a  conspiracy  to  accuse  another 
person  of  a  capital  offence  (3);  for  then  he  is  to  have  the  villanous 
judgment,  and   lose  tlie  freedom  of  the  law.      ft  is  otherwise,  says 
Lord  Hale,  where  he  is  attainted  of  a  consi)iracy  at  the  suit  of  the 
party.  (4)      In  a  late  case   in  the   Admiraliy   court,  which   under- 
went much  discussion.  Sir  W.    Scolt  delerniined,  on  great  consid- 
eration, that  a  conviction  for  a  conspiracy  to  commit  a  fraud  would  Fraud, 
not  render  an  afiidavit  of  the  convict  inadmissible  (5) ;  and  a  con- 
viction for   keeping  a   public  gaming  house  has   been   thought  not 
sufficient  to  render  a   witness  incompetent.  (6)      It   seems,  that  a 
person,  who  has  been  convicted  of  winning  by  baud  or  ill  practice 
in  certain  games,  would  not  be  a  competent  witness,  since  thestat. 
9  Ann.  c.  11,  s.  5,  not  only  inflicts  a  penally,  but  also  enacts,  that 
he  shall  be  deemed  infamous;  and  one  of  the  legal  consequences  of 
infamy  is  incompetency  to  give  evidence  in  a  court  of  justice.  (7) 

As  convicts  in  such  offences  cannot  be  witnesses,  they  cannot 
make  affidavits  to  support  a  charge  against  others;  but,  to  excuU 
pate  or  defend  themselves,  their  affidavits  have  been  allowed  (8)j 
upon  the  same  principle  that  the  afJirmations  of  Quakers  are  admit- 
ted in  their  defence  on  a  criminal  charge. 

Outlawry,  in   a   personal  action  is  no  ground   of  exception.  (9)  Outlawry, 
But  judgment  of  outlawry  for  treason  or  felony,  appearing  on  re- 
cord by  the  sheriff's  return  of  the  exigent,  has   the  same  effect  as 
judgment  after  a  verdict  or  confession  (10) ;  it   follows,  therefoie, 
that  such  an  outlaw  cannot  be  a  competent  witness.  (11) 

(1)  Adjudged   in  Clancey's  case,  by     C.  21. 

seven  judges;    Holt  C.   J.   doubling  at  (6)  R.  v.  Grant,  1  Ry.  Mo.  N.   P.  C. 

first.     Fortesc.    Rep.    20S.     Busiiell    v.  270.,  by  AbboU  C.  J. 

Barrett,  1  Ry.  Mo.  434.  (7)  Co.  Lit.  6,  b.    Fortesc.  208. 

(2)  Co.  Lit.  6,  b.  11  Rep.  99,  a.  (8)  Davis  nnd  Carter's  case,  2  Salk. 
2  H.  P.  C.  277.  Hawk.  P.  C.  b.  1,  c.  461.  CharJesvvortii's  case,  cited  by  the 
72,  s.  9.  Com.  Dig.  tit.  Testinoigne  Court  in  Walker  v.  Kearney,  2  Str. 
A.  5.  114S. 

(3)  2  H.  P.  C.  277.  Hawk.  ib.  See  (9)  Co.  Lit  6,  b.  Com.  Dig.  tit. 
R.  V.  Croseley,  2  Leach,  Cr.  C.  49(i.  Tcstm.  A.  5-  Hawk.  P.  C.    b.   1,  c.  72. 

(4)  2   H.    P.  C.  277.     Saville  v.  Ro-  s.  107. 

berts,  Carth.  416.     Hawk.  ubi.  sup.  (10)  3  Inst.  212.     Hawk.  P.  C.  b.  2. 

(5)  In  the  case  of  Ville  de  Varsovie     c.  48,   s.  22. 

and  others,  2    Donson's    Adm.   R.    174.         (11)     Celier's   case,    Sir    T.   Raym. 
Crowther  r.    Hopwood,  3  Stark.    N.  P.     569. 


'30  Of  Incompetency  from  Infamy.  [Ch.  4. 

Infamous  pun-  SoMie  kinds  of  punishment  were  formerly  ihouelu  to  be  marks  of 
inlamy,  and  tnerelore  witnesses  were  Irequently  rejected  alter 
branding,  or  after  standing  in  the  pillory;  these  being  the  usual 
punishments  for  the  crimen  falsi,  (l)  But  the  distinction  is  obvious, 
and  now  clearly  settled,  that  it  is  not  the  punishment,  but  the  na- 
ture of  the  offence,  which  causes  infamy. (2)  The  maxim  is,  ex- 
delicto  non  ex  supplicio  emergit  infarnia.  Thus,  it  is  no  objection 
against  the  competence  of  a  witness,  that  he  has  been  in  the  pillo- 
ry for  a  libel  on  the  government,  or  for  a  trespass,  or  a  riot.  (3)  He 
is  not  incompetent,  unless  he  has  suffered  for  the  crimen  falsi,  as  for 
perjury,  &c.;  in  which  case  it  is  the  crime,  not  the  punishment, 
that  incapacitates.  And,  on  the  other  hand,  after  judgment  for 
the  latter  kind  of  offence,  he  is  not  competent,  though  the  punish- 
ment may  have  been  only  a  fine.  (4)  (a) 


ment. 


Proof  of  judg-  Infamy,  arising  from  the  sentence  of  a  court  of  justice,  must 
be  established  by  regular  proof  of  a  conviction  and  judgment 
in  the  due  course  of  law.  The  rule  most  commonly  laid  down 
is,  that  a  conviction  makes  the  witness  incompetent.  But  it  is 
not  to  be  understood,  that  conviction  alone  incapacitates;  for 
the  conviction  may  possibly  have  been  quashed,  on  a  motion  in 
arrest  of  judgment.  (5)  The  judgment,  therefore,  as  well  as 
the  conviction,  must  be  proved;  and  the  genera!  rule  is,  that 
the  judgment  can  only  be  proved  by  the  record  or  by  a  copy  of 
the  record.  (6)  Even  an  admission  by  the  witness  himself,  of 
his  being  in  prison  under  judgment  for  grand  larceny, (7)  or 
of  his  having    been   guilty   of  perjury   on    another   occasion,  (8) 

(1)  2  H.  P.   C.    277.     Co.   Lit.  6,  6.  or  of  subornation  of  perjury. 
2  Dodson's  Adrn.  Rep.  187.  (4)    R.  v.    Ford,  2   Salk.    690.     Bull. 

(2)  Gilb.  Ev.  127.  Bull.  N.  P.  292.  N.  P.  292.  Crosby's  case,  10  St.  Tr.  42, 
R.  V.  Davis,  5  Mod.  75.  R.  v.  Ford,  Appx.  fol.  ed.  S.  C.  2  Howell's  St.  Tr. 
2   Salk.   690.       Pendock    v.    Mackinder,  820. 

2  VVils.    18.    Wilies,    Rep.    666.   S.   C.  (5)  Lee   v.   Gansel,  Cowp.   8.     Gilb. 

Fortesc.   Rep.    209.     Prindle's    case,    2  Ev.    129.     Com.    Dig.    tit.   Testm.  A.  5 

Leach,  Cr.  C.  496.  Sutton  v.  Bishop,  4  Burr.  2283. 

(3)  Chater  v.   Hawkins,  3  Lev.    426.  (6)  Com.  Dig.  lb.     8  East,  78. 
Com.  Dig.  tit.  Testm.  A.  5.    Gilb.  Ev.  (7)   R.  v.   Castel   Careinion,   8   East, 
127.     Fortesc.   Rep.   209.     In  such   ca-  78. 

ses   punishment    by   the   pillory    is   now  (8)     R.     v.     Teale,     11    East,    309. 

abolished.      See  st-    56.  G.    3,  c.    138.  Rands  v.   Thomas,    5   Maule    &    Selw. 

But    this     statute    does    not     make    any  246. 
alteration   in  the  punishment  of  perjury, 


(a)  See  Note  58,  p.  64. 


I 


Sect.  I.]  Of  Incompetency  from  Infamy.  31 

will  not  make  him  incompetent,  however  it  may  affect  his 
credit,  (a) 

If  the  objection  to  the  competency  of  a  witness  is  founded  on 
criminal  proceedings  instituted  in  any  other  court,  tliese  proceed- 
ings must  appear  on  their  face  to  be  regular,  and  be  rei;ularly 
proved.  A  document,  purporting  to  be  an  indictment  and  con- 
viction, is  imperfect  as  a  record,  without  a  caption;  since  the 
caption  shows  by  what  authority  the  indictment  was  found. (1) 
And  the  indictment  must  slate  all  circumstances  essential  to  con- 
stitute the  offence.  (1) 

1  he  party,  who  objects  to  a  witness  as   attainted,    will  have  to  Reversal  of 
''      ,  •'  judgment, 

prove  the  attainder  by  proceedings  in  the   regular  course  of  law; 

and  the  opposite  party  may  produce  other  proceedings  in  answer 
to  the  objection.  If  a  conviction  and  judgment  are  read  on  the 
one  side,  this  may  be  answered  on  the  other  by  reading  a  rever- 
sal of  the  judgment  upon  a  writ  of  error.  If  the  incapacity 
arises  from  outlawry  under  a  charge  of  treason  or  felony,  it  will 
be  removed  by  proof  of  the  reversal  of  that  outlawry.  Or  if  the 
objection  is,  that  the  witness  has  been  attainted  by  an  act  of 
parliament,  which  subjects  him  to  all  the  penalties  of  an  attain- 
der unless  he  surrenders  before  a  certain  day,  (which  is  a  kind 
of  parliamentary  outlawry,)  it  may  be  shewn,  that  the  witness 
surrendered  conformably  with  the  act.  Such  an  objection  and 
such  an  answer  occurred  on  the  trial  of  Lord  Lovat;  (2)  and  in 
that  case  the  record  of  a  proceeding,  commenced  on  the  part  of 
the  crown,  and  defended  on  the  part  of  the  witness  by  a  plea 
of  surrender,  which  the  Attorney  General  confessed  to  be  true, 
was  allowed  to  be  conclusive  proof  of  the  fact  of  his  surrender 
within  the  limited  lime. 

A  person   convicted  of  felony   being  thus  disabled   from   giving  Competency 
•A  ■  ■  u  -J       J     u  u  1      J-    ^  how  restored- 

evidence,  it  remains  to  be  considered,  by  what  means  the  disa- 
bility may  be  removed. 

1     In  ancient  times,  this  was  affected  in   many  cases  by  a  pro-  i- P"''?^"^"'' 

(1)  Cooke  V.  Maxweil.  2  Starke,  N-  (2)  9  St.  Tr.  652.  665,  fol.  ed.  S.  C. 
P.  C.  184.  18  Howell's  St.  Tr.  1004,  1011. 

(a)  See  Note  59,  p.  65. 


^2  Of  Incompetency  from  Infamy.  [Ch.  4. 

ceeding  then  in  use,  called  purgation, (1)  by  wliicli  all  persons 
entitled  to  the  benefit  of  clergy,  were  allowed  to  clear  themselves 
before  the  ordinary,  even  after  a  conviction  in  the  temporal 
courts.  If  on  this  canonical  trial  the  party  failed,  which  seldom 
liappened,  he  was  sentenced  to  remain  in  the  ordinary's  prison; 
and,  on  the  other  hand,  upon  his  acquittal,  he  was  pronounced 
innocent,  absolved  from  infamy,  and  discharged  from  the  punish- 
ment, incapacity,  and  discredit  incident  to  the  felony.  Thus, 
formerly,  allowance  of  the  privilege  of  clergy,  followed  by  purga- 
tion, would  restore  the  competency  of  a  witness. 

clefv.  2-   ^^   ^^"^s  afterwards   found   necessary  to  abolish  this  mode  of 

trial  by  purgation;  and  therefore  the  stat.  18  Eliz.  c.  7,  s.  3, 
enacted,  that  person?  admitted  to  the  benefit  of  clergy  should 
no  longer  be  delivered  to  the  ordinary  for  purgation;  but, 
"  after  the  clergy  allowed  and  burning  in  the  hand,  should  forth- 
with be  enlarged  and  delivered  out  of  prison."  In  the  construc- 
lion  of  this  statute  the  judges  held,  that,  as  the  old  mode  of 
purgation  was  thus  taken  away,  the  burning  in  the  hand  should 
be  considered,  as  having  the  same  effect  in  clearing  away  the 
disabilities  of  conviction. (2)  "  It  was  never  the  intent  of  the 
statute,"  said  Lord  Chief  Justice  Treby,  in  Lord  Warwick's 
case,  "  nierely  to  set  at  large  and  leave  him  a  convict-felon; 
but  when  is  said  'delivered,'  it  meant  delivered  free  from  all 
incident  and  further  penalties,  as  if  delivered  upon  purgation. "(3) 
Hence  the  burning  in  the  hand  was  considered  in  the  nature  of  a 
statute-p.irdon.(4) 

^^%y  It  appears  to  be  established  by  several  cases,  that  proof  of  ilie 
record,  whereby  clergy  was  granted,  without  further  proof  of  the 
burning  in  the  hand,  was  not  sufficient: (5)  the  U'Ords  of  the 
statute  being,  that  he  should  be  "  delivered  after  clergy  allowed  and 

(1)  Treby  C.  J.  in  Lord  Warwick's  (3)  Lord  Warwick's  case,  5  St.  Tr. 
case,  5  St.  Tr.  172,  fol.  ed.  13  Howell's  172,  fol.  ed.  S.  C.  13  Howell's  St.  Tr. 
St.  Tr.  1017.  S.    C.  Hob.  288.    Kelyiig,     1017. 

37.  (4)  Hob.  292.     Bull.  N.  P.  292. 

(2)  Heston's  case,  cited  in  Foxley's  (5)  Searle  v.  Williams,  Hob.  28S. 
case,  5  Rep.  110.  Searle  v.  Williams,  Armstrong  and  Lisle,  Kel.  93.  Lord 
Hob.  Rep  292.  Celier's  case,  Sir  T.  Warwick's  case,  6  St.  Tr.  166,  fol.  ed. 
Raym.    369.      Lord   Castlemain's  case,  13  Howell's  St.  Tr.  1003,  S.  C. 

ib.   380.     Kelyng,  37. 


Sect.  1.]         Of  Incompetency  from  Infamy. 


33 


burning  in  the  hand."  This,  therefore,  is  necessary  to  be  proved, 
except  in  those  cases  where  the  benefit  of  clergy  may  be  allowed 
without  branding,  as  to  a  clerk  in  holy  orders  or  peer  of  parliament 
or  where  the  branding  is  excused  by  pardon,  or  commuted  for  an- 
other punishment  (as  a  fine,)  and  then  it  must  be  shown,  that  the 
witness  has  sufi>;red  such  substituted  punishment  instead  of  the 
other.  ( I )  In  Lord  Warwick's  case,  above  cited,  one  who  had  been 
convicted  of  manslaughter  and  allowed  his  clergy,  but  not  burnt  in 
the  hand,  was  called  as  a  witness  for  the  prisoner;  and,  on  an  objec- 
tion to  his  competency,  the  lords  referred  it  to  the  judges  |)resent,  who 
thought  he  was  not  a  competent  witness,  as  the  statute  had  made 
the  burning  in  the  hand  a  condition  precedent  to  the  discharge.  (2) 

3.  In  cases  where,  instead   of  this   burning  in  the   hand,   some  ^-  Effect  of 

I  -I  II  1-11  r  1-  /       suffering  pun- 

Other  punishment  has    been  substituted    by  act  ot  parliament,  (as  ishment. 

transportation,  by  st.  4  G.  1,  c.  11,  (3)  or  a  fine  or  whipping  by  st. 

19  G.  3,  c.  74,  s.  3,  (4)  felons,  within   the  benefit  of  clergy,  are 

made  competent  after  suffering  such  substituted  punishment:  these 

statutes  expressly  providing,  that  it  shall   operate  as  a  pardon,  and 

completely  remove  all  incapacities,  {s) 

4.  A  person  convicted  of  grand  larceny  and  sentenced  to  trans-  Under  sen- 

r  III  f       ^  •       ,       ,     ,,  .  lence  of  trans- 

portation tor  seven  years,  who  has  been  confined  in  the  hulks,  and  poitation. 


(1)  Burridgcs's  case,  .3  3  P.  Wms. 
485,  490. 

(2)  See  Infra  p.  33,  on  sutistitulion 
of  punisliment  for  burning  in  the  hand. 

(3)  The  first  section  of  this  statute 
enacts,  that  on  the  conviction  of  any 
person  for  grand  or  petit  larceny, 
where  the  convict  is  entitled  to  benefit 
of  clergy,  and  liable  only  to  the  penal- 
ties of  burning  in  the  hand  or  whipping 
(except  persons  convicted  for  receiving 
or  buying  stolen  goods,  knowing  them  to 
be  stolen,)  the  court  before  whom  the 
person  is  convicted,  instead  of  ordering 
the  offender  to  be  burnt  in  the  hand  or 
whipped,  may  direct,  that  he  shall  be 
transported  for  the  space  of  seven  years; 
and  on  the  conviction  of  an  offender  for 
a  crime,  for  which  he  would  be  exclud- 
ed from  the  benefit  of  clergy,  but  to 
whom  mercy  is  extended  on  condition  of 
transportation,  the  court  may  allow  him 


the  benefit  of  a  pardon  under  the  great 
seal.  And,  by  the  second  section  of  the 
same  act,  where  any  such  offenders  shall 
be  transported,  and  shall  have  served 
their  respective  terms,  according  to  the 
order  of  any  such  (;ourt,  such  services 
shall  to  all  intents  and  purposes  have  the 
efl"ect  of  a  pardon,  as  for  the  crime  for 
which  they  vvere  so  transported. 

(4)  The  St.  19  G.  3,  c.  74,  enacts, 
that  in  case  of  a  conviction  of  any  felony 
within  the  benefit  of  clergy,  for  which 
the  ofTendei  is  liable  to  be  burned  in 
the  hand,  the  court  may  impose  a  mod- 
erate pecuniary  fine  instead  of  the  burn- 
ing, or  may  order  the  offender  (except 
in  case  of  man-slaughter)  to  be  publicly 
or  privately  whipped :  and  that  such  fine 
or  whipping  shall  have  the  same  effect 
as  the  burning,  in  discharging  from  felo- 
nies or  restoring  to  credit. 


Vol.  I. 


(s)  See  Note  60.  p  65. 

5 


34  Of  Incompetency  from  Infamy,  [Ch.  4. 

discharged  at  the  expiration  of  ihe  seven  years,  is  a  competent  wit- 
ness; sucli  confinement  and  discliarge  operaling  as  a  statute  par- 
don.(1)(0 

tenceofim-  -'^  u'itness  who  lias  been  imprisoned  under  sentence  of  imprison- 

prisonment.  ment  for  grand  larceny,  but  which  sentence  omitted  to  order  either 
burning  in  the  hand,  whipping  or  fine,  is  not  restored  to  competen- 
cy, though  he  suffer  the  whole  imprisonment.  (2)  («). 

Peers  of  parliament, (3)  and  all  clergymen,  were  entitled  to  ben- 
efit of  clers,y,  and  therefore  competent  witnesses,  without  burning 
in  the  hand,  and  consequently  without  any  punishnient  in  its  stead. 

Benefit  of  cler-  But  the  benefit  of  clergy,  wfth  respect  to  persons  convicted  of 
gy  a  0  13  e  .  fgjQpy^  jg  j^Q^y  abolished,  by  a  recent  statute. (4)  Consequently, 
the  commuted  punishments  of  transportation,  fine,  or  whipping, 
in  lieu  of  burning  in  ihe  hand,  are  abolished.  And  this  alteration 
will  be  found,  in  tnany  cases,  to  have  an  inconvenient  effect  on  the 
general  rule  as  to  the  competency  of  witnesses. 

Petty  larceny.  As  the  privilege  of  clergy,  at  common  law,  extended  only  to  cap- 
ital felonies,  and  not  to  petty  larcenies  or  misdemeanors,  persons 
convicted  of  petty  larceny  could  not  be  discharged  under  st.  18 
Eliz.  c.  7,  s.  3,  which  relates  only  to  such  as  were  allowed  their 
clergy;^  nor  were  they  included  in  stat.  19  G.  3,  c.  74,  s.  3,  which 
gives  a  discretionary  power  to  substitute  a  moderate  fine  or  whip- 
ping for  burning  in  the  hand;  (5)  so  that  convicts  in  petty  larce- 
ny, though  they  had  suffered  the  sentence  of  the  law,  were  still  in- 
competent to  give  evidence,  while  in  many  cases  convicts  in  grand 
larceny  were  admissible.  This  inconsistency  was  removed  by  a 
statute  of  the  present  reign,  which  has  been  already  mentioned.  (6) 

(1)  Badcock'3  case,  Rnss.  &  r»y.  (.3)  St.  1  Ed.  6,  c  12,  s.  4. 
Cr.  C.  248.  The  witness,  while  in  tho  (4)  7  &  8  G.  4,  c  2S,  s.  (j. 
halks,  escaped   twice,  and    was   brought         (5)   St.  4  &  5  il.  7,c.  13. 

baclt  again  each  time  within  twenty-  (6)  St  31  G.  3,  c.  35,  and  36  G,  S> 
four  hours;  the  judges  held,  that  this  c.  29,  Irish  stat.  See  aisa  7  &  8  G.  4, 
circumstance  did  not  destroy  the  ef-  c.  29,  s.  2.  The  St.  31  G.  3,  c.  5,  re- 
fect of  the  statute-pardon,  as  he  had  cites,  that  persons  convicted  of  grand 
served  out  the  remainder  of  his  term.  larceny  are   by  their  punishment  restored 

(2)  Harding's    case,    1    Ry.  JVIo.    Cr.  lo  their  credit  as  witnesso* 
Ca.  39. 


(/)  See  Note  61,  p.  65.     (w)  See  Note  62,  p.  6C. 


Sect.  1.]  Of  Incompelcncy from  Infamy.  36 

4.  The  competency  of  a  witness  may  be   restored  by    a  pardon  **•  Pardon  «"»- 
'  -^  ,  "^  der  great  «e?:l. 

from    the  Crown,    under   the   great    seal.       Some   indeed    have 

thought,  that  a  pardon   can  only   remove   the  punishment,    not  the 

blemish  of  ciiaracter.  ( 1 )      But   it  is  now  settled,  that  a    pardon  of 

treason   or    felony,    even   after   convictiin   or    attainder,   not  only 

takes  off  every  part  of  the  punishment,   but    also   clears  the  party 

from  the  legal   disabilities  of  in^'amy,  and   all  other   consequences 

of  his   crime.  (2)*      A  pardon  is  said  to   make   the  witness  a  new 

creature,  and  gives  him   a  new   capacity;  the  crime,  indeed,   may 

still  be  objected   against   him,  as   affecting   his  credit,   but   cannot 

be  urged   against  his   competency  as  a    witness. (y)      It  is   indeed 

hiiihly   expedient,   that   a  pardon  should   be  allowed    to  have  this 

eflect,    and    th.it   a  discretionary    power   should    be  vested   in    the 

crown    to   remove   such   legal    incapacities:    otherwise,  a  person, 

oiace   convicted   of   felony,     would    be    stigmatised     for   life,   and 

treated   as    infanaous    in    courts  of  law,     though   in    the    opinion 

of   mankind    his   character  for  truth  and   honesty  may   have   beerj 

completely  redeemed,  (w) 

As  in  the  greater  offences,  so  in  those  below  felony,  (as  perjury  inmisdemean- 
at  common  law,    &c.,)  a   pardon  will   restore  competency,    where  °"' 
Che  disability  is    a  consequence  of  the  judgment. (3)      But   where 
the  disability    is  declared    by    act  of  parliament  to    be   part  of  the 
punishment,    as  in  the  case  of  a    conviction  for   perjuiy    or   subor-  Perjurj. 
aatiou  of  peijury   on  the   stat.  5  Eliz.  c.  9,  the  king's  pardon  will 
not  make   tlie  witness   competent.  (3)  (.r)      In  tiiis  case  the  statute 
expressly   provides,  that  he   shall  never  be   admitted   to  give   evi- 
dence in  courts  of  justice,  until  the  judgment  be  reversed. 

(1)  Lord  Coke  in  Brown  v.  Cm-  s.  48.  Com.  Dig.  Testm.  A  5.  ReiHy's 
«haw,  2  Bulstr.  154.  Dodridge  J.  in  case,  Leach  Cr.  C.  510.  Lord  War- 
Harris  V.  Whyte,  Palm.  412.  Latch,  wick's  case,  5  St.  Tr.  166,  fol.  ed. 
8i;  and    other  dicta    cited    in  Hargrave,  13  Howell's  St.  Tr.  1003,  S.  C. 

Jurid.  Arg.  vol   ii.  p   2(i3  (3)  2  H.  P.  C.    278.     R.  v.    Greepe, 

(2)  Cuddington  v.  VVilkins,  Hob.  67,  2  Salk.  514.  1  Ld.  Raym.  256,  S.  C. 
82.  Rookwood's  case.  Rep.  temp.  R-  v  Ford,  2  Saik.  690.  Crosby's 
Holt,  685.  4  St.  Tr.  6S2.  fol.  ed.  S.  C.  case,  2  Saik.  689.  Bull.  N.  P.  292. 
13  Howell's  St.  Tr.  185.  Crosby's  Hawk.  b.  2,  c.  46,  s.  112.  R.  v.  War- 
case,  Lord  Raym.  39  Lord  Castle-  den  of  the  Fleet,  Rep.  temp.  Holt, 
main's    ease.    Sir  T-    Ray,    379.     2    H.  135.     Anonvm.  case,  3  Saik.  155. 

P.  C.    278.     Hawk.    P.   C.    b-  2,  c.   37. 


*  The  kiaig's  perogative  has  the  same  efle'^t  in  Scotland  in  restoring  the  compe- 
tency of  a  convict  See  Burnet's  History  of  the  Criiriinal  Law  of  Scotland,  p.  405, 
and  the  report  there  of  the  cane  of  Bell  and  iMortimer  in  1800,  in  which  the  rule  was 
fully  established- 


(d)  See  Note  63,  p.  66.     (n-)  See  Note  64,  p.  66-     {x)  Sec  Note  65,  p.  66. 


36 

Conditional. 


Pardon  under 
■ign  manual. 


General  rule. 


Accomplices. 


Of  the  Admissibilittj  of  Accomplices.        [Ch.  4. 

Tf  the  pardon   is  conditional,  the   performance  of  the  condition 
ought  to  be  sliown;  (1)  for  on  that  depends  all  its  efficacy.      Thns, 
where  pardon  is  on  condition  of  transportation    for  a  number  of 
years,  the  witness  is    not    competent    before  the  expiration  of  the 
term  or  other  lawful  determination.  (2)(j/) 

Where  a  wanant  is  5|,ranted  under  the  sign  manual,  counter- 
signed by  a  principal  secretary  of  state,  for  a  free  or  conditional 
pardon  of  a  |)er3on  convicted  of  felony,  his  discharge  from  custody 
in  the  case  of  a  free  pardon,  and  the  performance  of-  the  condition 
in  tlie  case  of  a  conditional  pardon,  will  now  have  the  effect  of  a 
pardon  under  the  great  seal,  as  to  the  felony  for  which  the  pardon 
is  granted.  (3) 

Sf.ct  it. 

Of  Ike  Admissibility  of  Accomplices. 

It  has  been  before  mentioned,  that  a  witness  is  not  incompetent 
from  infamy  of  character,  unless  a  conviction  and  judgment  are 
proved.,  though  he  may  confess  himself  guilty  of  an  infamous  crime. 
Nor  is  it  a  sufficient  objection  to  his  competency,  that  he  has  been 
an  accomplice  in  guilt  with  the  prisoner  at  the  bar. 

The  evidence  of  accomplices  has  been  at  all  times  admitted,  (4) 
from  a  principle  of  public  policy  and  from  necessity,  as  it  is 
scarcely  possible  to  detect  conspiracies  and  many  of  the  worst 
crimes  without  their  information.  In  the  case  of  Charnock,  (5) 
who  was  tried  for  high  treason  in  the  time  of  William  III, 
Lord  Holt  said,  in  his  address  to  the  jury,  "  Conspiracies  are 
deeds  of  darkness  as  well  as  of  wickedness,  the  discovery  whereof 
can  properly  come  only  from  the  conspirators  themselves;  and 
the  evidence  of  accomplices  has  always  been  allowed  good   proof 

(1)  Hawk,  b  2,  c.  37,  s.  45.  Grose,    J.    7   T.    R.    609.     Westbeer's 

(2)  Hawk.  b.  2,  c.  37,  s.  4.5.  Bur-  case,  Leach,  Cr.  C.  14.  Despard's  case, 
ridge's  case,  3  P.  Wms.  485.  See  28  Howell's  St.  Tr.  4S8.  And  see  on 
Badcock's  case,  supra  p.  34.  this  subject  the   report   of  the  proceed- 

(3)  St.  7  &  8  G.  4,  c.  28.  s.  13.  ings     under   a     special    commission    at 

(4)  1    H.   P.  C.    303.     Hawk.  b.  2,  York,  in  1813,  pp.  17,  150. 

c.    46,   s.    94.     Gilb.    Ev.    123.     Char-         (5)  4  St.  Tr.    594.  S.  C.     12  How- 
nock's  case,  4    St.    Tr.    594.     12  How-  ell's  St.  Tr.  1454,    referred    to  by   Lord 
ell's  St.  Tr   1463,  S.    C.      Rookwood's  Ellenborough  in  Despard's  case,  28  How- 
case,  4  St.  Tr.  6G3.  12  Howell's  St.  Tr.  ell's  St.  Tr.  488. 
143,  S.    C.     Attwood's   case,   cited   liy 


(y)  See  Note  66,  p.  66. 


Sect.  2.]     Of  the  Admissibility  of  Accomplices.  37 

In  aJI  ages;  and  they  are  most  proper  witnesses,  for  otherwise  it 
is  hardly  possible,  if  not  altogether  impossible,  to  have  a  full  proof 
of  such  secret  contrivances;"  and  he  adds,  "  such  discoveries  are 
to  be  encouraged  in  all  governments,  without  which  there  can  be 
no  safety."  But  though  accomplices  are  received  as  witnesses, 
their  testimony  ought  to  be  received  by  a  jury  with  a  sober  degree 
of  jealousy  and  caution;  for,  on  their  own  confession,  ihcy  stand 
contaminated  with  guilt,  and,  in  the  hope  of  lessening  iheir  own 
infamy,  will  often  be  tempted  to  throw  as  much  guilt  as  possible 
upon  the  prisoner.  They  may  be  also  In  some  cases  entitled  to  re- 
wards on  the  prisoner's  conviction,  and  in  all  cases  exjiect  to  earn 
a  pardon;  and  as  fear  is  usually  their  motive  in  giving  evidence, 
the  same  feeling  may  tempt  them  to  exaggerate  their  statement, 
for  the  purpose  of  destroying  their  former  associate,  and  securing 
iheujselves  against  his  vengeance.  (1)  (c) 

The  practice  of  admitting  accomplices  to  give  evidence  against  Approvement, 
their  associates  has  been  adopted  from  analogy  to  the  ancient  doC' 
trine  of  approvement;  a  part  of  the  old  law,  which,  though  now 
grown  obsolete,  may  properly  be  mentioned  here,  from  its  affinity 
to  the  more  improved  modern  usage  substituted  in  its  place.  (2)  Ap- 
provement is  when  a  prisoner,  arraigned  on  a  capital  charge,  con-- 
fesses  the  fact  before  plea  pleaded,  and  accuses  his  accomplices  of 
the  same  oflence.  He  must  also  discover  upon  oath,  not  only  the 
particular  crime  charged  upon  him,  but  all  treasons  and  felonies, 
of  which  he  can  give  any  information.  It  is  then  in  the  discretion 
of  the  Court  either  to  refuse  or  adn]it  him  to  be  an  approver  :  and  if 
on  his  confession  it  appears,  that  he  was  a  principal  and  tempted 
the  others,  he  ought  not  to  be  received.  But  if  he  does  not  dis- 
cover the  whole  truth,  or,  on  the  trial  of  the  appeal,  the  party  ac- 
cused should  be  acquitted,  judgment  of  death  passes  against  him 
upon  his  own  confession  of  tiie  indictment. 

(I)  On  the  subject  of  tlie   credibility  Lord   Chief  Justice   of  the   Court  of  K, 

of    accomplices,     considered    witli    re-  B.    in   Ireland,    in    the  trial    of    Forbes, 

ference  to  the    nature    of  the  particular  Graham,  and    others,    for    a    conspiracy, 

offence  in  which   they    have   been   con-  1823.     Printed  Rep.  p.  355. 
eerned,  the   reader  is   referred  to  some         (2)  Rudd's  case,  Cowp.  335. 
excellent     observations    made    by    the 


($!)  See  Note  67,  p.  67 


33  Of  the  Admissibiliiy  of  Accomplices.      \C\\.  4. 

This  practice  ot  ollouing  approvements,  which  was  at  all  times 
in  the  discretion  of  the  Court,  is  now  grown  into  disuse,  and  entire- 
ly discontinued;  more  mischief  having  arisen  from  false  accusa- 
tions under  pretence  of  approving,  than  benefit  to  the  public  by  the 
discovery  and  conviction  of  real  offenders.  (1)  Whatever  good 
was  to  be  expected  from  this  old  method,  is  now  more  effectually 
provided  for  auti  secured  by  one  of  the  following  methods: — First, 
there  are  several  acts  of  parliament  which  enact,  in  cases  of  robbe- 
ry, (2)  coining,  (3)  biirgjiry,  (4j  housebreaking,  (4)  horse-steal- 
ing, (4)  privately  stealing  to  the  value  of  five  shillings  from  shops, 
warehouses,  stables  and  coach-houses,  (4)  or  uttering  counterfeit 
money,  (5)  that,  if  any  such  ofiender,  being  out  of  prison,  shall 
discover  two  or  more  persons,  who  have  committed  the  like  of- 
fences, he  shall  be  entitled  to  pardon  for  such  crime,  on  their  con- 
viction. Another  method  is  by  special  proclamations  in  the  Ga- 
zette or  otherwise,  promising  pardon  on  certain  conditions. 

Implied  com-  -^^^  ^'^"^  practice  most  generally  adopted  is  that  of  admitting  ac- 
pact  with  ac-  complices  to  give  evidence  for  the  crown,  under  an  implied  promise 
of  pardon,  on  condition  of  their  making  a  full  and  fair  confession  ot* 
the  whole  truth.  (6)  On  a  strict  and  ample  performance  of  this 
condition,  to  the  satisfaction  of  the  judge  presiding  at  the  trial, 
they  have  an  equitable  title  to  a  recommendation  for  the  king's 
mercy.  Tliey  cannot  plead  this  in  bar  to  an  indictment  against 
them,  nor  can  they  avail  themselves  of  it  as  a  defence  on  their  trial, 
though  it  may  be  made  the  ground  of  a  motion  for  putting  off  the 
trial,  in  order  to  give  the  prisoner  time  to  make  an  application  in 
another  quarter.  (7)  (a) 

This  equitable  claim  to  pardon  does  not  protect  an  accomplice 
from  prosecutions  for  other  offences,  in  which  he  was  not  concern- 
ed with  the  prisoner.  (8)  With  respect  to  such  offences,  therefore, 
he  is  not  bound  to  answer  on  his  cross-examination.  (9)  (/;) 

(1)2  Hale,  P.  C.  227,  ch.  29.  (7)  Cowp    Rep.  339. 

(2)  St.  4  W.  &.  M.  c.  8,  s.  7.  (8)  Lee's    case,    Russ.  Ry.    Cr.    C. 

(3)  St.  6  W.  3,  c.   17,  s    12.  361      Brunlon's  case,    Russ.    Ry.    Cr. 

(4)  St.    10    W.   3,    c.    25,    3.    5.  St.     C.  454. 

5  Ann.  c.  31,  s.  4.  (9)  West's   case,   O.    B     sess.    after 

(5)  St.  15  Geo.  2,  c.  28,  s.  4.  Easter  term,  1821. 

(6)  Rudd's  case,  Cowp.  339. 

(a)  See  Note  68,  p.  68.       (6)  See  Note  69,  p.  68. 


Sect.  2.]       Of  the  Admissibility  of  Accomplices.  S9 

If  an  accomplice,  after  having  confessed  the  crime,  and  after  be-  Compact  bo- 
ins,  received  as  a  witness  against  his  companions,  breaks  the  con- 
dition on  which  he  is  admitted,  and  refuses  to  give  full  and  fair  in- 
formation, the  Court  may  direct  a  bill  to  be  presented  forthwith  to 
the  grand  jury  against  him,  or,  if  they  are  discharged,  may  com- 
mit him  to  j)rison  upon  his  own  written  confession,    (c) 

It  is  not  a  matter  of  course,  to  admit  a  person,  charged  with  the  Motion  to  ad- 
conimission  of  a  crime,  as  witness  on  the  Inal  ol  his  accomplices,  pUce. 
not  even  after  he  has  been  so  allowed  by  the  committing  magis- 
trate; but  if  his  evidence  is  wanted  before  the  grand  jury,  and  ab- 
solutely necessary  for  the  finding  of  the  bill,  a  motion,  for  the  pur- 
pose of  his  attendance,  must  be  made  by  the  counsel  for  the  prose- 
cution, and  the  Court,  under  all  the  circumstances  of  the  case,  will 
either  grant  or  refuse  an  order,  as  may  most  effectually  answer  the 
purpose  of  justice,  {d) 

The  general  rule  then  is,  that  a   person  who    confesses  himself  Accomplicea 
guilty  of  a  crime,  is   a  competent   witness  against   his  partners   in  ^l^^"  <^'*'"P®' 
guilt.     If  two  or  more  persons  are  charged  with  a  crime,  one  who 
is  not  indicted   may  be  a  witness  against  the  others,  though  he  has 
had  a  promise  of  pardon  or  some  reward  on  condition  of  giving  evi- 
dence. (1) 

If  he  is  indicted  separately,  he  is  a  competent  witness,  either  on  separately  in. 
the  [lart  of  the  prosecution,  or  on  behalf  of  the  prisoner  on  trial;  (2)  dieted, 
even  after  conviction,  he  is  not  incompetent,  unless  judgment  has 
passed  ;  for  it  is  not  the  conviction,  but  the  judgment  that  creates 
the  disability.  It  was  formerly  thought,  from  analogy  to  the  an- 
cient doctrine  of  approvement,  that  an  accomplice,  separately  in- 
dicted for  the  same  offence,  could  not  give  evidence  against  the 
others,  unless  he  had  first  pl-aded  guilty  to  the  indictment  against 
him;  (3)    but  the  rule  is  now  settled  as  above  stated. 

(1)  Tonge's  Case,  Kel.  17.  1  H.  ston  and  Downes,  2  Roll.  Abr.  685,  pi. 
P.  C.  30.3,  S.  C.  Layer's  case,  10  St.  3.  Hawk.  b.  2,  c,  46,  s.  99.  Gilb.  Ev. 
Tr.  259.  19  Howell's  St.  Tr.  375,  S.  C.  118.  Bath  v.  Montague,  cited  Fortesc. 
Hawk.  P.  C.  b.  2,  c.  46,  S.  135.  Rep.  247. 

(2)  Case  of  Bilmore  and  others,  2  (3")  Sir  P.  Cresby's  case,  1  H.  P.  C. 
H  PC.  279.     1   H.  P.   C.  305.     Gun-  303. 


(c)  See  Note  70,  p.  68.     (rf)  See  Note  7),  p.  68. 


40 


Of  the  Admissibility  of  Accomplices.      [Ch.  4. 


If  the  evidence  of  an  nccornplice  is  deemed  to  be  absolutely  ne- 
cessary in  snpf)ort  of  a  prosecution,  the  proper  course  is  that  before- 
mentione<],  to  apply  to  the  Court  for  permission  to  send  him  as  a 
witness  before  the  grand  jmy.  And  should  this  course  be  adopted, 
it  will  be  more  convenient  not  to  include  him  in  the  bill.  But  if 
he  is  indicted  together  with  the  rest,  and  his  evidence  is  thought 
to  be  indispensably  necessary,  he  may  still  be  used  as  a  witness,  in 

Pleading  gui'- some  cases,  with  the  consent  of  the  Court.  Thus,  if  he  plead  euil- 
ty,  and  by  the  judgment  of  tiie  Court  is  fined,  |)ays  tlie  fine,  (in  a 
case,  where  such  fine  may  be  imposed,  and  where  the  suffering  of 
this  substituted    punishment  restores   competency,)  he   may    be  a 

Acquitted  to  be  witness  against  the  others.  In  a  prosecution  for  a  conspiracy,  a 
verdict  of  acquittal  may  be  taken  for  some  of  the  defendants,  be- 
fore the  opening  of  the  case  against  the  rest,  and  the  defendants, 
so  acquitted,  may  be  called  as  witnesses.  (1)  And  there  appears  to 
be  no  objection  in  point  of  law,  in  the  case  of  felony  also,  (if  the 
Court  appiove  of  the  couise,)  to  allow  a  verdict  of  acquittal  to  be 
taken  as  to  one  of  the  persons  indicted,  for  the  purpose  of  using  his 
evidence  against  the  others. 


ty  and  fined. 


used  as  wit 
nes3 


As  on  the  trial  of  one  of  several  persons,  who  are  separately  in- 
dicted, another  of  the  persons  indicted,  who  has  not  yet  been  tried; 
is  a  competent  witness  in  support  of  the  prosecution;  so  he  is  equal- 
ly competent  to  give  evidence  on  behalf  of  the  accused,  (c) 


Principal 
felon. 


On  the  trial  of  an  accessary,  for  a  misdemeanor  in  receiving 
stolen  goods,  under  stat.  22  G.  3,  c  58,  the  principal  felon  is  a 
competent  witness;  the  statute  enacting,  that  the  accessary  may 
be  proceeded  against,  although  the  principal  felon  has  not  been  con- 
victed, and  whether  he  be  or  not  amenable  to  justice.  (2)  So  the 
principal  felon  may  be  a  witness,  in  a  prosecution  on  stat.  4  G.  1, 
c.  11.  for  taking  a  reward  to  help  to  stolen  goods.  (3)  (/) 


The  evidence  of  accomplices  is  also  admitted   on  the  trial  of 


(1)  R.  V.  Rowland  and  others,  1  Ry.     467.     Price's  case,  ib.  468,  n.  (1)    Pat- 
&  Mo.  402.  ram's  case,  2  East,  P.  C.  782. 

(2)  Haslam's  case,    1   Leach,  Cr.  C.         (3)  Wild's  case,  2  East,  P.  C.  782. 


(«)  See  Note  72,  p.  69.     (  /")  See  Note  73,  p.  69. 


Sect.  2.]      Of  the  Admissibility  of  Accomplices.  41 

smaller  offences.      In  an  information  under  slat.  2.  G.  2,  c.  24,  for  Accomplices, 

.  1       '"  information, 

brtbery  at  an  election,  a  person,  who  has  received  a  bribe,  may  be  &.c. 
a  witness  against  the  defendant,  though  in  case  of  a  conviction  he 
would  be  indemnified  from  the  jDcnalties  of  the  act.(l)(5-) 

In  an  action  of  trespass,  a  co-trespasser,  who  is  not  sued,  maybe  Co-trespasser, 
a  witness  against  the  defendant,  though  left  out  of  the  declaration 
for  that  pur[)ose,  and  alihough  satisfaction  from  one  is  a  discharge 
for  all  the  rest.  (2)(/i)  A  persori,  who  has  set  his  name  as  sub-  Attesting  wit- 
scribing  witness  to  a  deed  or  will,  is  admissil'le  to  impeach  the  ex- 
ecution of  the  instrument,  (3)(i)  alihough  his  evidence  is  to  be  re- 
ceived with  all  the  jealousy  necessary  attaching  to  a  witness,  who 
upon  his  oath  asserts  to  be  false,  what  he  lias  by  his  solemn  act 
attested  as  true.  (4) 

Since  accomplices  are  compclent  witnesses,  it  necessarily  fol-  Confrmatory 
lows,  that,  if  their  evidence  is  believed  by  a  jury,  a  prisoner  may, 
strictly  speaking,  be  legally  convicted  upon  it,  though  it  be  uncon- 
firmed by  any  other  evidence  as  lo  his  identity.  (5)  But  their  tes- 
timony alone  is  seldom  of  sufficient  weight  with  a  jury  to  induce 
them  to  give  a  verdict  against  the  prisoner;  the  temptation  to  com- 
mit perjury  being  so  great,  where  the  witness  by  accusing  another 
may  escape  himself.  (6)  The  practice,  therefore,  it-',  to  advise  the 
jury  to  regard  the  evidence  of  an  accomplice,  only  so  far  as  he  may 
be  confirmed,  in  some  material  part  of  his  narrative,  by  unimpeach* 
able  testimony.  It  is  not  necessary  that  it  should  be  confirmed  in 
every  circumstance  which  he  details  in  evidence:  for  there  would 
be  no  occasion  to  use  him  at  all  as  a  witness,  if  his  narrative  could 
be  completely  proved  by  other  evidence  free  from  all  suspicion.  Nor  Confirmation 
need  it  appear  from  the  confirmatory  evidence,  that  bespeaks  truth  ^^ '°  °"^' 
with  respect  to  all  the  prisoners,  or  with  respect  lo  the  share  which 

(1)  Bush  D.    Railing,   Sav.  289,  cited  (4)    1  Ves.  &  Beam.  208. 

by  Lord    Mansfield,  Cowp.  199.     Snead         (5)  Atwood's  case,  2   Leach,    Cr.  C. 

V.    Robinson,    VVilles,  423,   and    n.  (c)  521.       Durham's     case,    ib.    538.      By 

ib.  425.  Ld.  Ellenborough,  (>.   J.  in  R.   v.  Jones, 

(2)  Bull.  N.  P.  286.  Luttrel  v.  2  Campb.  N.  P.  C.  133.  31  Howell's 
Reynel,  1  Mod.  283.  Chapman  v.  St.  Tr.  315.  325,  S.  C.  7  T.  R.  609, 
Graves  and   others,  2   Camp.    b.    N.  P.  S.  P. 

C.  333,  n.  (6)  By  Lord    iMansfield    C.  J.  Cowp. 

(3)  Lowe    V.    Jolifte,  1   Black.   Rep.     Rep.  336. 
366.     7T.  R.  604,   611.     6  East,  195. 


(f )  See  Note  74,  p.  70.     {h)  See  Note  75,  p.  70.     (i)  Sec  Note  76,  p.  70. 

Vol.  I.  6 


42  Of  the  Admissibility  of  Accumplicts.       [Ch.  4. 

each  had  in  the  transaction.  But  if  the  jury  are  satisfied,  that  he 
speaks  truth  in  some  material  parts  of  his  testimony,  in  vvhicii  they 
see  unimpeacliable  evidence  brought  to  confirm  him,  that  is  a 
ground  for  them  to  beheve,  that  he  also  speaks  truly  in  other  parts, 
and  with  regard  to  otiier  prisoners,  as  to  whom  there  may  be  no 
confirmation.  (1) 

The  confirmation,  here  intended,  is  not  a  confirmation  merely  of 
those  parts  of  the  narrative  which  implicate  the  accomplice  alone, 
and  which  may  be  true  without  involving  tlje  prisoners  in  any  share 
of  the  transaction;  but  such  a  corroboration  by  unimpeached  evi- 
dence, as  may  satisfy  the  jury  that  tliose  persons,  whom  he  char- 
ges with  a  participation  of  the  crime,  were,  in  truth,  as  lie  repre- 
sents, his  confederates  and  associates  in  guilt.  The  principle,  upon 
which  courts  and  juries  are  disposed  to  give  credit  to  an  acconjplice, 
.however  base  his  conduct,  when  he  is  confirmed  by  clear  and  unim- 
peachable evidence,  is  well  warranted  on  this  consideration,  that 
witnesses,  who  agree  in  the  main  facts  of  a  case,  without  concert 
and  without  contrivance,  acquire  a  credit,  entirely  independent  of 
character,  from  the  mere  agreement  and  consistency  of  their  nara- 
tive.  ( j) 

Informers.  There  is  another   class  of  persons,    which  cannot   properly  be 

considered  as  coming  within  the  description,  or  as  partaking  of 
the  criminal  contamination  of  accomplices;  persons,  entering  into 
communication  with  conspirators,  with  an  original  purpose  of  discov- 
ering their  secret  designs,  and  disclosing  them  for  the  benefit 
of  the  public.  (2)  The  existence  of  such  original  purpose 
on  their  part  is  best  evinced  by  a  conduct,  which  precludes 
them  from  ever  wavering  in  or  swerving  from  the  discharge  of 
their  duty,  if  they  might  otherwise  be  disposed  so  lo  do;  as 
when  the  witness  binds  himself  to  his  duly  by  an  early  commu- 
nication, and  receives  directions  as  to  the  steps  which    he   is  after- 

(1)  Report    of  the    Trials    at    York,  elt's  Case.    Russ.   &    Ry.    Cr.    C.    252. 

Jan-  1813,  on  special  commission,  p.  3,  Case  of    Fordham,     Harvey,    and    two 

17,  50,  150,  165,  201.     Despard's  case,  others,  tried  by  Lavvreii(-e,  J.    at  O.   B. 

28  Howell's  St.  Tr.  488;  and  the  case  Jan.  1807,  before  the  Judges,  25th  Apri) 

cited  by  Lord   EUenborough  C.  J.  in  his  1807,  H.  MS. 

summing  up,  on  the  trial  of  Valentine  (2)  Part  of  Lord  Ellenborough's  ad- 
Jones,  31  Howell's  St.  Tr.  325.  Daw-  dress  to  the  jury  in  Despard's  case,  28 
bar's  case,  3  Stark.  N.    P.  C.  31.     Brik-  Howell's  St.  Tr   4S9. 


(»  See  Note  77,  p.  71. 


Sect.  2]    Of  the  Admissibiliti/  of  Accomplices.  43 

wards  to  pursue,  on  entering  into  the  apparent  prosecution  of  the 
purposes  of  the  conspiracy.  With  this  view  and  object,  such  a 
witness  is  not  an  accomplice,  although  perhaps  a  great  degree  of 
objection  or  disfavor  may  attach  to  him  on  other  grounds,  for  cer- 
tainly (however  necessary  it  may  be  in  some  cases)  no  person  of 
very  delicate  feelings  would  choose  to  go  on  from  day  to  day,  ap- 
parently forwarding  the  purposes  of  a  conspiracy,  in  order  that  he 
might  afterwards  disclose  it,  and  bring  the  parties  concerned  in  it 
to  justice;  but  still,  whatever  may  be  the  merit  or  demerit  of  this 
species  of  conduct  on  other  grounds,  such  a  witness  is  not,  strictly 
speaking,  an  accomplice.  (1). 

Tiie  cases  which  have  been  mentioned,  respecting  the  evidence 
of  accomplices,  and  on  the  admissibility  of  persons  to  prove  the  for- 
gery of  any  instrument,  wln'ch  they  have  signed  as  subscribing  wit- 
nesses clearly  show  tbat  a  mairs  guilt  in  the  transactions  disclosed 
is  not  a  sufficient  reason  for  rejecting  his  testimony,  however  it  may 
affect  his  credibility.  (2)  In  the  case  of  Walton  v.  Shelley,  (3)  in-  Witness  inval- 
deed,  which  was  an  action  upon  a  bond,  "iven  by  the  defendant  in  ' /^^'"s  an '"- 

'  I  '  c  J  strur 


ment. 


consideration  of  the  plaintiff's  delivering  up  certain  promissory  notes, 
the  Court  of  King's  Bench  held,  that  the  indorser  of  one  of  the  notes  xndorsar. 
ought  not  to  be  allowed  to  prove  the  consideration  of  the  note  usu- 
rious, on  a  supposed  principle  of  public  policy,  that  no  party  who 
has  signed  a  paper  or  deed,  and  by  his  signature  given  it  credit, 
shall  ever  be  permitted  to  give  testimony  to  invalidate  that  instru- 
ment. This  appears  to  have  been  the  first  case  in  support  of  such 
a  rule,  and  the  contrary  seems  now  to  be  fully  established. 

In  the  later  case  of  Jordaine  v.  Lashbrooke,  (4)  this  subject  was 
very  fully  discussed;  and  the  Court  there  determined,  that  in  an 
action  on  a  bill  of  exchange  against  the  acceptor,  the  payee,  who  Payee, 
was  ajso  endorser,  was  a  comjjetent  witness  for  the  defendant,  to 
prove,  that  the  bill,  which  was  unstamped,  and  purported  to 
be    drawn    at    Hamburgh,    was,   in   fact,    drawn    in   London,   and 

(1)  Part    of     the    same    address,    28     lant,    audiendi     non     sunt" — was     the 
Howell's  St.  Tr.  489.  max  inn     of     the     civil     law.       Donriat, 

(2)  Ante    p.    41.     See    also    R.     v.     book  3,  tit.  6,  sect   3,  art.  12. 

Tcale,  ante,  p.  30.  (4)   7    T.    R.  601.     Ashurst  J.    con- 

(3)  1  T.  R.  296.     "  Testes  qui  ad-     tra.     See    Jones    v.    Brooke,    4    Taunt, 
versus     fidem     suam    testationis    vacjl-     464.     1  Ves.  &  Beam.  208. 


4i.  Of  the  Adnil^sibiliiy  of  Accomplices.       [Cli.  4. 

tlieiofore  void  for  the  want  of  a  stamp.  "The  constant  practice  of  ex- 
amining accomplices,  (said  Mr.  .Tus'ice  Lawrence,  in  delivering  liis 
opinion,)  and  the  case  of  a  witness  to  a  forged  will  who  has  obtain- 
ed probate,  show,  that  the  mere  circumstance  of  a  man's  represent- 
ing himse'f  as  having  done  things  inconsistent  with  common 
honesty,  is  not  sufficient  to  reject  his  testimony,  however  it  may 
weaken  and  impeach  it.  (1)  Nor  is  there  any  distinction  with  re- 
spect to  negotiable  securities,  where  the  point  to  be  considered  is  the 
competency  of  the  witness;  for  supposing  what  he  has  done  in 
putting  such  instrument  into  circulation  to  be  ever  so  great  a  fraud 
and  ever  so  mischievous,  he  is  still  a  witness  unconvicted  of  any 
crime,  and  without  interest,  and  not  more  devoid  of  principle  than 
many  who  have  been  mentioned  as  constantly  admitted."  (2)  {k). 

In  an  action  of  assumpsit  for  goods  furnished  to  a  ship,  it  was 
proved  on  the  part  of  the  plaintiff,  that  the  defendant's  name  was 
in  the  register  as  joint  owner  with  another  person,  on  whose  oath 
the  register  was  obtained;  and  that  after  the  lime  of  furnishing  the 
goods,  the  defendant  executed  to  him  a  conveyance  of  the  share, 
which  he  appeared  from  the  register  to  have;  the  Court  of  King's 
Bench  held,  that  this  person  was  a  competent  witness,  on  the  part 
of  the  defendant,  to  prove  that  he  had  inserted  the  defendant's 
name  without  his  privity  and  consent,  and  that  the  conveyance 
was  executed  in  order  to  divest  him  of  all  alleged  interest.  (3)  In 
this  case,  it  is  to  be  observed,  there  was  not  any  ground  of  charging 
the  defendant  with  the  amount  of  the  goods,  except  in  virtue  of  the 
supposed  interest,  which  the  register  represented  him  to  have  in 
the  ship;  and  under  such  circumstances,  it  was  competent  to  him 
to  show  that  the  property  never  belonged  to  him. 

(1)  7  T.  R.  610.  117,  and  some  other  cases  of  the  same 

(2)  7  T.    R.   611.     By    this   case  of    kind  are  overruled. 

JordaiDe   v.    Lashbiooke,     the   case   of        (3)  Rands  r.    Thomas,   5   Maule    & 
Adams  v,  Lingard,  1   Peake   N.    P.    C.     Sel.  246. 


{k)  See  Note  78,  p.  71. 


Cli.  5.]   Of  Incompetency  of  Witnesses  from  Interest.  45 

CHAPTER   V. 

Of  the  Incompetency  of  Witnesses  from  Interest. 

The   fourth  ground  of  incompetency  is  interest.  (/) 

It  is  a  general  rule,  that  all  witnesses,  interested  in  the  event  of  General  rule. 
a  cause,  are  to  be  excluded  from  giving  evidence  in  favour  of  that 
parly,  to  which  their  interest  inclines  them.  They  are  excluded 
from  a  presumed  want  of  integrity  or  impartiality;  and  not,  as  some 
have  concluded,  that  they  njay  be  saved  from  the  tenjptation  to 
commit  perjury.  If  that  were  the  true  principle,  there  would  be 
some  inconsistency  in  excluding  witnesses,  who  have  an  interest 
even  to  the  smallest  amount,  at  the  same  time  that  others  are  admit- 
ted who  may  he  subject  to  the  more  powerful  influence  of  relation- 
ship, friendship  or  feeling.  "  Where  a  man,"  says  Chief  Baron  Gil- 
bert, "  who  is  interested  in  the  matter  in  question,  comes  to  prove 
it,  it  is  rather  a  ground  for  distrust  than  any  just  cause  of  belief; 
for  men  are  generally  so  short-sighted,  as  to  look  at  their  own  pri- 
vate benefit,  which  is  near  to  them,  rather  than  to  the  good  of  the 
world,  that  is  more  remote  ;  therefore,  fiom  the  nature  of  human 
passions  and  actions,  there  is  more  reason  to  distrust  such  a  biasS" 
ed  testimony,  than  to  believe  it." 

In  treating  of  the  incompetency  of  interested  witnesses,  it  is  pro- 
posed to  consider  the  subject  in  the  following  order:^- 

First,  with  respect  to  the  nature  of  the   interest,  which  will  dis- 
qualify; 

Secondly,  of  the  rule  on  the  subject  of  interest,  considered  with 
reference  to  the  parties  in  the  suit; 

Thirdly,  of  the  same  rule   considered  with  reference  to  the  hus- 
band or  wife  of  the  party; 

Fourthly,  of  the  efl^ect  of  admissions  by  a  party  to  the  suit,  or  by   * 
his  agent,  against  the  party's  interest; 


(I)  Sea  Note  79,  p.  81, 


-i6  Of  the  Nature  of  the  Interest  [Ch.  5. 

Fifthly,  of  the  admissibility  of  the  confession  of  a  prisoner 
against  himself; 

Sixthly,  of  the  competency  of  the  party  injured,  as  witness  in 
criminal  prosecutions; 

Seventhly,  of  certain  exceptions  to  the  general  rule  on  the  sub- 
ject of  interest;  and. 

Lastly,  of  the  means  by  which  the  competency  of  an  interested 
witness  may  be  restored. 

Sect.   I. 

Of  the  JVaiwre  of  the  Interest  which  disqualifies  a  Witness. 

It  is  scarcely  possible  to  reconcile  the  earlier  cases  on  this 
subject  with  those  of  a  moie  recent  date.  The  old  cases  respect- 
ing the  incompetency  of  witnesses  were  generally  decided  on  very 
narrow  grounds.  Evidence,  which  ought  to  have  been  admitted, 
although  received  with  caution,  was  at  once  excluded  without 
being  heard  ;  as  if  juries  were  not  to  be  trusted  with  all  the  means 
of  deciding  right,  because  it  was  possible  their  decision  might  be 
wrong.  "  The  old  cases  on  the  competency  of  witnesses,"  said 
Lord  Mansfield,  (1)  "  have  gone  upon  very  subtle  grounds.  But 
of  late  years  the  courts  have  endeavoured,  as  far  as  possible,  con- 
sistently with  those  authorities,  to  let  the  objection  go  to  the  credit 
rather  than  to  the  competency  of  a  witness." 

At  one  time  it  was  generally  held,  that,  if  a  witness  had  no 
interest  in  the  question  put  to  him,  he  was  incompetent.  Thus 
it  has  been  laid  down  in  some  of  the  earlier  cases,  as  a  general 
rule,  that  one  commoner  cannot  be  a  witness  for  another  com- 
moner ;  and  that  in  an  action  on  a  policy  of  insurance  one  under- 
writer cannot  be  a  witness  for  another.  But  a  distinction  has 
since  been  made  between  an  interest  in  the  question  put  to  a 
'  witness,  and  an  interest  in  the  event  of  the   suit  ;  (2)  (m)  and  the 

(1)  Walton  V.    Shelley,!  T.  R.   300,         (3)   1  T.    R.    302.     3   T.    R.  36.     7 
cited  by  Lord  Kenyon    in   Bent   v.  Ba-     T.  R.  603. 
ker,  3  T.  R.  32.  ;  and  see    R.    v.  Bray, 
Cas.  Temp.  Hard.  360. 


(m)  Sea  Note  80,  p.  81. 


Sect.  1.]  which  disquulifits  a  Witness.  47 

general  rule  now  established  is,  that  a  wi.nesswill  not  be  disqualifi- 
ed on  the  ground  of  interest,  unless  lie  is  interested  in  the  event  of 
the  suit,  {n) 

The  question  then  resolves  itself  into  tliis,  Whether  the  witness 
proposed  to  be  examined,  has  an  interest  in  the  event  "f  the  suit?  In 
considering  this  subject,  the  simplest  method  will  be,  to  ascertain, 
in  the  first  place,  what  is  not  such  an  interest  in  the  event,  as  will 
disqualify  a  witness  from  giving  evidence:  and  then  to  enquire, 
what  is  such  an  interest,  as  will  disqualify  him. 

I.   First,  what  is  not  such  an  interest,  as  will  disqualify. 

It  is  not  an  objection  to  the  competency  of  a  witness,  that  he  has  Wishes  or  ex- 
wishes  or  a  strong  bias  on  the  subject-matter  of  the  suit,  or  that  he  ^^^^^^  benefit, 
expects  some  benefit  from  the  result  of  the  trial,  (o)  Such  circum- 
stances may  influence  his  mind,  and  affect  his  credibility;  they  are, 
therefore,  always  open  to  observation,  and  ought  to  be  carefully 
weighed  by  the  jury;  who  are  to  determine  what  dependence  they 
can  have  on  his  testimony;  but  they  will  not  render  him  incompe- 
tent, (p) 

A  witness  who  stands   in  the   same   situation  as   the  party,  for  Witness  in  th©' 
whom  he  is  called  to  give  evidence,  is  under  a  strong  bias,  and  may  wiuTthepartT 
have   strong   wishes  upon  the  subject:  but  is  not   on  that  account 
disqualified,  (q)      Thus  if  there  are  two  actions  brought  against  two  Co-iresspas»-- 
peisons  for   the  same  assault,  in  the  action  against   one  the   other 
may  be  a  witness;    (I)  or  if  several  persons  are  separately  indicted 
for  perjury'in  swearing  to  the  same  fact,  either  of  them  before  con- 
viction may  be  a  witness  on    the  trial   of  the  others.  (2)      So,  in  Wifeotcon- 
Rudd's  case,  a  woman,  whose  husband  had  been  before  convicted,  ^"^*- 
was  admitted  to  give  evidence  against  the  prisoner,  though  she  ex- 
pected, that,  in  case  of  his  conviction,  her  husband  would  receive  a 
pardon.  (3) 

Upon  the  same   principle,  in  the  case  of  Bent  v.  Baker,  which  Underwriter  in? 
was  an   action  against   an    underwriter  on  a    policy  of  insurance,  po^'<^y- 

(1)  By  Ashurst,  J.   1    T.   R.  301.  5  2  Roll-  Abr.  685.  art.  3;     S.  C.  cited  2 
Barn.  &  Cress.  387.  H.    P.  C.    280,  and   in    R.    v.  Gray  (or 

(2)  Bath   V.  Montague,  cit.    Fortesc.  Bray,)  2  Selw.  N.  P.  1120. 
Rep.     247.       Gunsione     v.      Downes.         (3)  1  Leach,  Cr.  C.  151. 


in)  See  .Note  81,  p.  81.      (o)  See  Kote  82,  p- 84.      (p)  See  Note  83,  p.  85. 
(?)  See  Note  84,  p.  89. 


48  Oflht  Mature  of  the  Interest  [Ch.  5. 

the  Court  held,  after  tnuch  argument,  that  another  underwriter 
was  a  competent  witness.  (1)  Tliis  case  came  hefore  the  Court 
of  King's  Bench,  hy  writ  of  error  fioiii  the  Court  of  Common  Pleas; 
a  writ  of  error  was  afterwards  hrought  to  reverse  the  judgment  of 
that  court,  (2)  hut  was  at  lengih  abandoned.  It  has  always  been 
considered  a  case  of  great  authority,  and  deserves  to  be  particularly 
noticed,  as  it  is  one  of  the  leading  cases,  which  have  established 
the  rule  of  evidence  on  this  subject.  The  principal  question  in  that 
case  was,  whether  a  person,  who  had  been  employed  as  broker  by 
the  plaintiff' in  procuring  the  policy  to  be  subscribed  by  the  defend- 
ant, and  had  afterwards  himself  subscribed  the  policy  as  assurer, 
was  a  competent  witness  for  the  defendant.  The  Court  adjudged 
that  he  was  competent;  Lord  Kenyon  C.  J.,  ISIr.  Justice  Buller,  and 
Mr.  Justice  Grose  held,  that  he  ought  not  to  have  been  rejected,  on 
the  broad  and  general  ground,  because  he  was. not  interested  in  the 
event;  Mr.  Justice  Ashliurst,  on  a  narrower  ground,  because  the 
witness  stood  in  the  particular  situation  of  broker;  and,  having 
made  himself  a  party  to  the  policy,  he  ought  not  to  be  allowed  by 
his  own  act  to  deprive  either  party  of  the  benefit  of  his  testimony. 
The  other  judges  also  concurred  in  this  opinion:  but  Lord  Kenyon 
C.  J.  declared,  that  the  reason  before  mentioned  was  the  principal 
ground  of  his  judgment.  He  said,  "  The  objection  is,  that  the  wit- 
ness was  underwriter  on  the  some  policy.  I  must  acknowledge, 
that  there  have  been  various  opinions  upon  this  subject,  and  that 
it  is  impossible  to  reconcile  all  the  cases.  Then  we  have  only  to 
consider,  what  are  the  principles  and  good  sense  to  be  extracted 
from  them  all.  I  think  the  principle  is  this:  if  the  proceeding  in 
the  cause  cannot  be  used  for  him,  he  is  a  competent  witness,  al- 
though he  may  entertain  wishes  upon  that  subject;  for  that  only 
goes  to  his  credit,  and  not  to  his  competency." 

Vendor.  The  vendor  of  an  estate,  who   has  sold  the    inheritance  without 

any  covenant  for  good  title  or  warranty,  is  competent  to  prove 
the  title  of  the  vendee,  (^i)  (r)  In  an  action  of  trover  for  a  horse,  a 
person  who  accepted  the  horse  from  the  plaintiff  as  a  security 
for  the   payment  of  a   sum  of  money,   and  afterwards  on   default 

(1)3T.    R.    27.     Bull.    N.    P.    2S3,         (2)  7  T.  R.  604. 
S.  P.  (3)  Busby  v.  Greenslate,  1   Str.  446. 


(r)  Seo  Note  85,  p.  97. 


I 


Sect.  1.]  which  disqualifies.  49 

sold  it  to  the  defendant,  is  connpetent  on  the  part  of  the  defendant 
to  prove  these  facts,  (1^  So  also  the  witness  is  competent  to  prove, 
that  the  goods,  the  subject-matter  of  the  action,  belonged  to  him- 
self, and  were  obtained  out  of  his  possession  fraudulently  by  the 
plaintiff;  (2)  for  in  neither  case  can  the  verdict  be  used  by  the  wit- 
ness, or  against  him.  (s) 

In  an  action  on  a  contract,  by  which  the  defendant  engaged  tf^  pa^t^e^r"' 
•print  for  the  plaintiff,  on  paper  to  be  supplied  by  him,  a  certain  num- 
ber of  copies  of  a  work,  and  to  cause  the  paper  to  be  insured  from 
fire,  while  it  remained  in  his  possession  ;  one,  who  has  purchased  a 
number  of  copies  from  the  plaintiff,  but  was  not  privy  to  the  con- 
tract with  the  defendant,  is  a  competent  witness  for  the  plaintiff, 
to  prove  the  contract.* (3) 

In  an  action  of  covenant  for  the  mismanagen)ent  of  a  farm,  the  Sub-tenant, 
sub-lessee  of  the  defendant  is  competent  to  prove  its  jiroper  cuhiva- 
tion.  (4)     In  an  action  by  a  reversioner  for  an  injury  done  to  the  in-  Reversioner, 
heritance,  his  tenant  in  possession  is  competent  to  prove  the  injury 
done  by  the   defendant.  (5)      In  an  action   on   a   policy   of  insur- Cnptaln  of 
ance,  where   the  only   question   is   concerning   the   original  desti-  ®  ^^' 
nation,  of  the   ship,   tlie  captain    is   con)petent   to   give   evidence 
respecting   that   fact,    though   a  part  owner  of  the  ship,   and,   as 
such,  liable   to  the   owners   of  the  goods,    in  case   the  ship   had 
unnecessarily    deviated    from    the    voyage  ;    but,    if  the  question 
turn  on  a  deviation,  he  could  not  be  examined.  (G)      In   an  action 

(1)  Nix  V.  CuUinj;,  4  Taunt.    18.  (4)  Wishavv  v.  Barnes,  1    Campb.  N. 

(2)  Ward    v.    Will<inson,  4  Barn.   &     P.  C.  341. 

Aid.  410.     The  only    point   presented  to  (5)    Doddington    v.  Hudson,    1   Bing. 

the  court,    in    this  case,    related    to    the  258.     8  Moore,  163,  S  C. 

competency  of  the  witness.  (6)  De   Symonds  v.    De  La   Cour,  2 

<3)    Mawman     v     Giilet,    2    Taunt.  New  Rep.  374. 
325.  n. 

*  The  principle  which  the  Lord  Chief  Justice  Man.<field  appears  to  have  deduced 
from  this  case,  and  which  was  stated  in  a  former  edition  of  this  work,  seems  to  ba 
\h\9.,  \.\ir\\.  a  dormant  partner,  not  being  one  of  the  contracting  parties,  and  who 
has  had  no  privity  of  communication  with  them  in.  the  contract,  is  competent  to 
prove  the  contract.  Bnt  perhaps,  on  consideration,  the  case  of  iMawrnan  v.  Giilet, 
may  be  ihouj^ht  not  to  warrant  such  an  cxti;nsive  and  general  proposition.  And 
since  it  has  been  determined  in  ihe  case  of  Skinner  v.  Stocks,  4  Barn  ^c  Aid.  437, 
that  an  ostensible  partner,  who  has  made  a  contract,  may  join  dormant  partners  with 
himself  as  co-plaintifFs,  it  seems  to  bo  justly  observed,  (in  a  new  edition  of  Saund. 
Rep.  291,  j.  n.  h.)  that  a  dormant  partner,  who  is  interested  as  such  in  the  contract, 
is  not  a  competent  witness  for  the  plaintiff  to  prove  the  contract. 


(«)  Sea  Note  86.  p.  92. 

Vol.  I.  7 


60  Of  thelNature  of  the  Interest  [CIi.  5. 

for  falsely  representing  the  circurnstances  of  a  person  who  was 
insolvent,  and  thereby  inducing  the  plaintiff  to  give  him  credit, 
that  person  is  competent  to  prove  his  insolvency.  (1)  In  these 
cases,  the  witness  neither  gains  nor  loses  directly  by  the  event  of 
the  verdict:  nor  would  the  verdict  be  evidence  either  for  or  against 
him. 

Influence  of         A  witness   is   not   incompetent  on   the  ground,  that   the  verdict 
*"  "^  *  may  afterwards   come   to  the   knowledge  of  a  jury   in   an   action 

brought  by  the  witness  himself,  and  so  have  an  influence  on 
their  judgment,  though  not  in  evidence  before  them.  Lord 
Holt,  indeed,  in  the  case  of  the  King  v.  Whiting,  (2)  on  an  in- 
dictinent  for  a  cheat  in  obtaining  a  person's  subscription  to  a 
note  of  100/.  instead  of  5/.,  rejected  the  evidence  of  the  maker 
of  the  note;  on  the  ground,  that  the  verdict  would  be  certainly 
heard  of,  in  an  action  on  the  note,  to  influence  the  jury.  Tliis 
decision  was  followed  by  Lord  Hardvvicke  C.J.  in  the  case  of 
the  King  v.  Nunez.  (3)  But  afterwards,  in  the  case  of  the 
King  v.  Bray,  (4)  Lord  Hardwicke  reviewed  his  own  opinion 
and  that  of  Lord  Holt,  and  decided  that  the  objection  went  only 
to  the  credit  and  not  to  the  competency  of  the  witness;  and 
with  respect  to  the  possibility  that  the  jury  might  hear  of  the 
verdict,  he  said,  that,  sitting  as  judge,  he  could  only  hear  of  it 
judicially. 

Upon  the  same  principle,  in  the  case  of  the  King  v.  Bos- 
ton, (5)  where  it  appeared  that  A.  had  brought  an  action  against 
B.,  (who  filed  a  bill  in  equity  for  an  injunction,  and,  afier  answer 
put   in   by    A.   denying   the   allegiitions   in  the   bill,  the   injunction 

Pnrfy  injured   vvas  dissolved,)  and  A.  was  afterwards  indicted  for  perj(u-y,  alleg- 

in  proPL'culion  .....  i     i       •     ,• 

for  perjury.      ^d  to  liave  been  committed  m  his  answer,  and  the  indictment  came 

on  to  be  tried  immediately  before  the  action;  the  Court  of  King's 
Bench  determined,  that  B.  was  a  competent  witness  in  tlie  prose- 
cution, and  had  been  properly  admitted  to  give  evidence  on  the 
trial;  as  be  could  not  avail  himself  of  the  conviction  of  A.  in  any 
civil  proceedings  between  them  either  in  law  or  equity. 

'     (!)  Smith     V.      Harris,     2     Starkie,  (3)  2  Str.  1043. 

N.  P.  C.  47.  (4)  Rep   temp.  Hard.  858. 

(2)  1  Salk.  283.  £S^  4  Ea«t.  S72. 


1 


Sect.   l.J  which  disqualijies.  61 

A  person,  who  has  borrowed  money  on  an  usurious  transaction,  Borrower,  ia 
is  a  competent  witness  for  the  plaintiff  in  an  action  for  penahies '^"''^  °  usury, 
against  the  lender;  (1)  and  whether  he  has,  or  has  not,  repaid 
the  money  lent,  does  not  appear  to  make  any  essential  difference, 
at  least  so  far  as  his  competency  is  affected;  *for  in  neither  case 
does  he  gain  any  thing  immediately  by  the  event  of  the  suit,  nor 
can  he  give  the  judgment  in  evidence  in  an  action  against  him  for 
the  money  lent,  {t) 

A  witness,  who  has  acted  under  a  bare  authority,  is    not  to  be  Liability  to 

1    J     I  /■  ••!•..■  1  .1  11^  information 

excluded  irom  giving  Ins  testimony,  merely  on   the    ground    that  action 

he  may  be  liable  to  an  informaiion  or  an  action,    in  case    the  fact, 

which  he  (tomes  to  prove,  should  be  found   otherwise.  (2)      Thus 

persons,  who  have   been  themselves   in  office,    are  often  called  to 

show  what    the  usage  is,  and  what   they    did    when    in  office:  yet 

if  their    acts    be    illegal,  they  are    liable    to    quo    warranto.     If 

persons  were  not  allowed   to  be  competent  witnesses,    in   matters 

belonging  to  corporations,  because  they  may  possibly  be   punished 

by  information,  much  good  evidence  would  be  shut  out.     Where- 

ever  any  unlawful  act  is  done  in  a  corporate  assembly,  the  whole 

assembly  are  liable  to  an  information;  yet  the  persons,  who  were 

present  at   such   assemblies,   are   always  allowed  to  be  good  wit- 

(1)  Abrahams  q.  t."  v.Bunn,  4  Burr,  cited  4  Burr.  2254.  See  Carpenters' 
2251.  Snjjlli  V.  Prager,  7  T.  R.  60.  Company,  &c.  v.  Hayward,  1  Doug. 
See  Masters  q.  t.  v.  Drayton,  2  T- K.  374  ;  in  which  case  the  witness  was 
496.  propel ly  rejected,    on  the    ground    that 

(2)  R.  V.  Brny,  Rep.  temp.  Hard,  'he  verdict  would  have  been  evidence 
860.  2  Sehv.  N.  P.  1120,  S.  C.  2  against  him,  as  to  a  right  claimed  by 
Str-  1069,  S.     P.       Bailie   v.   Wilson,  custom. 


•  In  the  case  of  Smith  q.  t.  v  Frager,  the  witness  said  he  had  repaid  the  princi- 
pal sum  and  interest  by  drafts,  which  had  been  duly  honoured,  and  that  he  was 
still  indebted  to  the  defendant  on  a  running  account  for  this  and  other  loans.  It 
may  be  observed,  that  at  the  time  of  the  tiial,  the  witness  was  an  uncertificated 
bankrupt;  but  this  was  not  considered  as  furnishing  any  objection.  (The  case  of 
Masters  q.  t.  v.  Drayton,  therefore,  in  2  T.  R-  496,  seems  to  be  over-ruled-  See  al- 
so Ridley  v.  Taylor,  13  East,  175.)  In  the  first  case  above  cited,  of  Abrahams  q. 
t.  V.  Bunn,  the  witness  proved,  tliHt  he  had  redeetned  the  pledges  and  repaid  tha 
principal  sum,  and  he  was  compptenl  to  prove  that  fact.  Lord  Mansfield  ia  report- 
ed to  have  said,  "that  if  the  defendant  had  produced  a  security,  or  proved  the 
pledge  to  be  remaining  in  his  custody,  it  would  liave  been  a  different  consideration, 
whether  the  witness,  who  was  the  borrower  of  the  money,  could  be  examined  to 
contradict  this."  However,  it  may  be  inferred  from  the  case  of  Jordaine  v.  Lasb- 
brooke,  which  has  been  before  mentioned,  that  this  consideration  would  not  now 
affect  the  competency  of  the  v^'itness. 


(0   See  Note  S7,  p.  92. 


52 


Of  the  Nature  of  the  Interest 


[Ch.  5. 


nesses  ;  and  if  they  were  not  allowed,  there  would  be  no  evidence 
at  all  as  to  such  facts.  (1) 
Bond-security       In  an  action  against  an  administrator,  one  of  the  bond-securities 

for  adniinistra-  ^^^  ^j^^  defendant's  due  administration  of  the  intestate's  effects  is  a 

tor. 

competent  witness,  on  behalf  of  the  defendant,  to  prove  a  ten- 
der; (2)  the  Court  said,  the  bare  possibility  of  an  action  being 
brought  against  a  witness  is  no  objection  to  his  competency,  and 
that  a  creditor  of  the  defendant  would  also  have  been  competent 
which  they  considered  a  stronger  case;  and  Mr.  Justice  BuUer 
said,  "  In  order  co  show  a  witness  interested,  it  is  necessary  to  prove 
that  he  must  derive  certain  benefit  from  the  determination  of  the 
cause  one  way  or  the  other,  (u)  In  this  case,  supposing  there 
were  no  assets,  though  the  defendant  would  be  answerable  for  the 
costs,  he  would  not  be  liable  on  his  bond  to  the  Ecclesiastical 
Court.  He  is  only  bound  to  distribute  the  intestate's  effects,  and 
it  does  not  appear  in  this  case  how  they  have  been  applied." 


Executor. 


Trustee 
Agent. 


A  witness  may  prove  a  codicil  made  subsequent  to  a  second 
will,  and  reviving  a  former  will,  though  he  has  acted  under  the  first 
will,  and  might  be  liable  to  actions  as  executor  de  son  tort,  if  it 
should  be  set  aside.  (3)  Indeed,  it  may  be  laid  down  as  a  general 
rule,  that  executors  in  trust,  trustees,  and  agents,  are  not  incompe- 
tent merely  on  the  ground  of  their  liability  to  actions.  (4)  {v)  If 
a  trustee  takes  a  beneficial  interest,  that  is  another  ground  of  ob- 
jection ;  but  without  such  an  interest,  trustees  and  executors  are 
competent  witnesses.  (5)  {lo) 


Interest  on 
both  sides. 


If  the  witness  has  an  interest  inclining  him  lo  each  of  the  par- 
ties, so  as  upon  the  whole  to  make  him  indifferent,  he  will  be  com- 
petent to  give  evidence  for  either  party.  Cases  of  this  descrip- 
tion will  be  mentioned  after vvards  in  their  place. 


(1)  By  Lord  Hardwicke  C  J.  R.  v. 
Gray  (or  Bray,)  2  Selw.  N.  P.  1120. 

(2)  Carter  v.  Pearce,  1  T.  R.  163. 

(3)  Baillie  v.  Wilson,  cited  4  Burr. 
2254.  Goodtitle  d.  Fowler  v-  VVel- 
ford,  1  Doug.    140. 

(4J  1  Mod.  Rep.  107,  Goss  v.  Tra- 
cy, 1  P.  VVnis.  2S7.  1  Black.  Rep. 
366.     Gilb.  Ev.  123. 


(5)  Goodtitle  dem.  Fowler  v.  Wel- 
ford,  1  Doug.  140  Bettison  v.  Brom- 
ley, 12  East,  250.  Heath  v.  Hall, 
4  Taunt.  32S.  Phipps  v.  Pitcher, 
6  Taunt.  220.  2  Marshall,  20,  S.  C. 
See  1  Ball  and  Beatty's  Rep.  100, 
414,  and  cases  there  cited,  aa  to  the 
rule  in  equity. 


(u)  See  Note  83,  p.  92-     («)     See  Note  89,  p.  96.     (w)    See  Note  90,  p.  98. 


Sect.  1.]  which/ disqualifies.  55 

In  the  cases  which  have  been  menlioned,  the  objection   against  Witness  be- 

,  .  1        r  1         •  r  1  •       -      J'    _  licvine  himself 

the  witness  was,  that  either  from   the  circumstance  ol  his  standing  j„terested, 

in  the  same  situanon  as  the  party  for  whom  he  was  called,  or  be- 
cause the  verdict  might  possibly  influence  the  jury  in  a  cause  in 
which  he  himself  might  be  a  parly,  or  from  some  other  reason  of 
the  same  kind,  he  expected  a  bentfit  from  the  result  of  the  suit. 
The  witness  in  those  cases  would  probably  have  admitted,  that  he 
believed  himself  interested;  and  it  was  upon  the  supposition  of 
this  fact,  that  the  objection  must  have  been  founded.  Those  cas- 
es, therefore,  in  which  such  objections  were  overruled,  appear  to 
have  determined  this  point,  that  a  witness  will  not  be  incompetent 
merely  on  the  ground  of  his  believing  himself  interested.  It  is 
true,  if  he  believes  himself  interested,  tlie  impression  on  his  mind, 
and  his  bias  in  favor  of  the  party  calling  him,  may  be  as  strong  as 
if  he  were  legally  incompetent.  But  the  difference  is,  that,  in 
the  one  case,  the  enquiry  is  more  simple  and  more  easily  defined; 
in  the  other,  it  is  complicated,  vague,  and  uncertain.  For  the  pur- 
pose of  determining  liiat  a  witness  is  incompetent  on  account  ol  his 
believing  himself  interested,  it  might  be  necessary  to  examine  him 
on  a  great  variety  of  points,  which  alter  all  would  be  more  proper 
for  the  consideration  of  the  jury;  as,  for  example,  on  the  nature 
of  the  benefit  which  he  expects,  the  reasons  for  his  expecting  it, 
and  the  impression  which  such  an  expectation  may  have  produced 
upon  his  mind.  Such  an  enquiry  v\ould  in  all  cases  be  extremely 
indefinite,  and  would  be  subject  to  this  great  inconvenience,  that  it 
might  lead  to  the  rejection  of  a  witness,  who,  on  further  examina- 
tion, might  appear  to  deserve  the  highest  credit,  and  might  have  it 
in  his  power  to  give  important  evidence,  [x) 

The  rule  of  law  respecting  interested  witnesses  is  perhaps  the 
best  that  could  be  adopted,  because  it  is  the  least  exclusive,  and 
most  accurately  defined.  It  excludes  such  only  as  have  an  inte- 
rest in  the  event  of  the  suit;  not,  that  in  all  cases  they  are  likely 
to  feel  a  stronger  bias  than  persons,  who  may  perhaps  expect 
some  benefit  from  the  event,  or  may  be  friends  or  relations  to 
the  party,  and  yet  are  not  on  that  account  incompetent;  but  the 
kind  of  interest,  which  is  marked  out  as  the  cause  of  incompe- 
tency, is  injgeneral   more  direct  and  immediate,  and    more  easily 


(X)   St»  Note  91,  p.  9S. 


54  Of  the  Nature  of  the  Interest  [C!i.  5. 

ascertained.     It  lias  been   held,  ilierefore,  that  a  witness  is  not  in- 

Honorarj         competent,  who    believes  himself  under  an   oblisiation  of   honor  to 
obligation.  .  .-  .  .  . 

inden)nify  the  bail,  unless  he  has  in  fact  entered  into  an  engage- 
ment to  th.U  eflect.  (1)  Snch  an  obligation  is  in  general  of  a  na- 
ture so  uncertain  and  variable,  that  it  cannot  safely  be  recognized 
in  courts  of  justice,  as  a  motive  of  conduct.  Besides,  where  the 
sense  of  honor  is  so  strong  and  binding  as  to  influence  him  against 
his  interest,  it  must  be  unnecessary  to  reject  the  witness;  as  the 
same  principle,  which  would  induce  him  to  pay  the  costs,  would 
oblige  him,  in  giving  his  evidence,  to  speak  only  the  truth;  and,  in 
cases  where  the  sense  of  honor  is  less  firm  and  imperative,  the 
ground  of  the  objection  fails,  since  the  wit:iess  is  not  bound  in  point 
of  law,  and  does  not  feel  himself  absolutely  bound  in  point  of  mor- 
als. But,  independent  of  tliis  reasoning,  another  more  general  an- 
swer is,  that  the  ends  of  justice  are  most  effectually  attained  by  a 
full  and  complete  investigation  of  the  subject  in  dispute;  and,  un- 
less the  objection  to  the  witness  is  sti'ictly  a  legal  ol)jec(ion,  he  will 
be  admitted  to  give  evidence.  In  the  case  supposed,  of  a  witness 
who  says  he  thinks  himself  bound  in  honor  to  pay  the  costs,  it 
might  be  injurious  to  the  party  who  calls  him,  to  be  deprived  of  his 
testimony  on  account  of  such  a  fannied  obligation;  more  especially, 
as  it  is  an  obligation  which  may  easily  be  pretended  by  the  witness, 
but  which  it  is  scarcely  possible  for  the  court  justly  to  appreciate, 
and  which,  from  the  nature  of  the  case,  the  party  cannot  release, 
nor  enforce  against  the  witness;  on  the  other  hand,  his  testimony 
may  not  deserve  all  the  credit  due  to  a  witness  free  from  bias,  and 
it  ought  therefore  to  be  strictly  examined  and  sifted.  The  witness, 
then,  is  to  be  heard,  but  his  evidence  is  open  to  observation.  (2)(?/). 

II.    Secondly,   having  shown   what  is  not  such  an   interest   in 

(1)  Peder3on  v.  Stofflas,  1  Campb.  1  Str.  129,  cited  and  approved  by  Ld. 
145,  S.  P.  said  to  have  bsen  ruled  Loughborougii  C.  J.  and  by  Gould  J. 
contra,  in  an  old  case,  by  Parker  <".  in  Trelawney  v.  Thonns,  I  H.  Bl.  307, 
J.;  see  Fotheringham  v.  Greenwood,  1  S.  P.  by  Peiryn  B.  in  Newland's  caae, 
Btr.  129.  1   Leach  Cr.  C.  333.      And  see  a  case 

(2)  There  are  several  dicta  in  sup-  tried  before  Lord  Mansfield,  cited  by 
port  of  the  position,  that  a  witness  is  counsel  in  Rudd's  case,  L3ach  Cr.  C. 
not  competent,  if  he  bglieves  himself  154.  See  also  the  case  of  the  Amilie, 
interested,  whether  he  is  or  is  not  in-  Villeneuve,  5  Robinson,  Adm.  Rep. 
t«reat«d  in  strictness  of  law.  By  Pratt  .344,  n. ;  and  the  case  of  the  Galen, 
C.  J-  in    Fotharinibam  v.    Greenwood,  2  Dodson,  Adm.  Rep.  20. 


(y)  See  Note  92,  p.  99. 


Sect.   1.]  which  disqualifies.  65 

the  event  of  the  suit,  as  will  disqualify  a  witness  from  giving  evi- 
dence, we  now  proceed  to  enquire,  what  is  such  an  interest  as  will 
disqualify. 

On  the  subject  of  interested  witnesses,  Ch.  B.  Gilbert  lays  down  General  rult. 
the  rule  thus:  "  The  law  looks  upon  a  witness  as  interested,  where 
there  is  a  certain  bfenefit  or  disadvantage  to  the  witness,  attending 
the  consequence  of  the  cause  one  way."  (1)  Mr.  Justice  Buller 
adopts  the  same  rule.  (2)  And,  in  the  case  of  the  King  v.  Prosser, 
where  the  question  was,  whether  on  an  appeal  against  a  rale,  pa- 
rishioners, who  had  rateable  property  hut  were  not  actually  rated, 
were  competent  wiuiesses  in  support  of  the  rate,  the  same  learned 
judge  expressed  hiujself  thus:  "  I  take  the  rule  to  be  this;  if  the 
witness  can  derive  no  benefit  from  the  cause  before  the  court,  he  is 
competent."  (3)  In  the  case  of  Smith  v.  Prager  (4)  Lorci  Kenyon 
said,  "  the  case  of  Bent  v.  Haker  (5)  laid  down  a  clear  and  certain 
rule,  by  which  I  have  ever  since  endeavoured  to  regulate  my  opin- 
ion. The  rule,  tliere  laid  down^  was,  tliat  no  objection  could  be 
made  to  the  com[)etency  of  a  witness  upon  the  ground  of  interest, 
unless  he  were  directly  interested  in  the  event  of  the  suit,  or  could 
avail  himself  of  the  verdict  in  the  cause,  so  as  to  give  it  in  evidence 
on  any  future  occasion  in  support  of  his  own  interest."  The  same 
rule  was  ap[)roved  and  adopted  in  the  case  of  King  v.  Boston;  (6) 
and  in  iTiany  later  cases  has  been  expressly  referred  to,  as  the  great 
heading  principle  on  this  subject.*  (z) 

The  general  rule,  then,  is,  that  if  the  verdict  can  be  used  in 
evidence  against  the  witness,  in  case  the  parly,  for  whom  he  is 
called,  should  fail  in  the  action, — or,  if  the  witness  can  avail 
himself  of  the  verdict,  so  as  to   give  it   in  evidence  in  support  of 

(1)  Gi!b.  Ev.  106,  7.  (4)   7  T.  R.  62. 

(2)  Bull.  N    P.  284.     3  T.  R.  36.  (5)  3  T.  R.  27. 

(3)  4  T.  R.   17.  (6)  4  East,  532. 


*  The  law  of  Scotland  is  not  so  strict  on  this  subject.  The  general  rule,  in  the 
Scotch  (^urts  of  Justice,  is,  that  no  interest  in  the  issue  of  a  cause  shall  be  held  to 
disqualify  a  witness,  (whatever  effect  it  may  have  on  his  credibility,)  unless  it  is  not 
only  a  direct  and  immediate  interest,  but  one  which  at  the  same  time  flows  from 
some  undue  and  corrupt  interference  on  the  part  of  the  witness.  See  Burnett's 
Treatise  on  the  Criminal  Law  of  Scotland,  p.  440. 


(z)  S«e  Note  98,  p.  99. 


56 


Of  the  Nature  of  the  Interest 


[Ch.  5. 


Servant. 


Broker. 
Agent- 


Tenant  in 
possession. 


his  own  claims,  that  this  is  a  direct   and   immediate  interest  in  ilie 
event  of  the  suit,  which  will  render  him  incompetent.  (I) 

1.  When  the  verdict  can  he  used  in  evidence  against  the  wit- 
ness, (a) 

In  an  action  against  a  master  for  the  negligence  of  his  servant, 
the  servant  is  not  a  competent  witness  to  disprove  his  own  negh- 
gence;  for  the  verdict  may  be  given  in  evidence  in  a  subsequent 
action  by  the  master  against  the  servant,  as  to  the  quantum  of  the 
damages,  though  not  as  to  the  fact  of  the  injury.  (2)  (6)  A  bro- 
ker is  not  competent,  (or  the  same  leason,  in  an  action  against  the 
principal,  to  disprove  the  negligence  of  the  defendant  in  the  course 
of  iiis  employment.  (3) 

In  an  action  of  ejectment,  the  tenant  in  possession,  upon  whom 
an  ejectment  has  been  served,  is  not  a  competent  witness  in  support 
of  the  title  of  tire  defendant,  under  wiiom  he  holds;  for  he  is  liable 
to  the  mesne  pro6ts,  and  the  verdict  in  ejectment  would  be  evi- 
dence against  him  in  an  action  to  recover  them.  (4)  (c) 


Landlord.  In  an  action   against  a  sberitF  for  a  false  return  to  a  writ  of  fieri 

facias,  in  which  return  l)e  stated  that  he  had  paid  a  sum  of  money  to 
the  landlord  of  the  premises  for  arrears  of  rent,  the  landlord  is  not 
competent  to  prove  liie  rent  due;  for  if  this  action  were  to  succeed, 
the  witness  would  be  liable  to  an  action  at  the  suit  of  the  sheriff,  in 
which  the  judgment  in  this  case  would  be  evidence  of  special 
damages.  (5) 


2.   When  the  verdict  may  be  used  by  the  witness   in  support  of 
his  own  claims,  (d) 

Where  a    right   of  common   is   claimed   by    custom,  one,   who 


(1)  3  T.  R.  32,  33,  36.  7  T.  R.  G2. 
A  East,  582. 

(2)  Green  v.  New  Riv.  Company, 
4  T.  R.  589.  Martin  v.  Henricksoii, 
2  Ld.  Raym.  1007.  Miller  v.  Fal- 
coner, 1  Campb.  251.  15  East,  474, 
8  Cainpb.  516.  Rolheroe  v  Elton, 
Peake,  N.  P.  C.  p.  84,  stated  in  vol.  2. 
Morish  V.  Foote,  2  Moore,  C.  P.  508. 
8  Taunt.    454,  S.    C.    Tiie  competency 


and  incompetency  of  servants,  bro- 
kers, fictors,  and  agents,  is  consider- 
ed more  fully  in  Ch.   V.  infra. 

(3)  Gevers  v.  Maimvnring,  Holt, 
N.  P.  C,  139.     Vide  infra,  Ch.  V. 

(4)  Bourne  v-  Turner,  1  Str.  632. 
Doe  dem.  Foster  v.  Williams,  Cowp. 
621. 

(5)  Keighliey  v.  Birch,  3  Campb. 
521. 


(«)  See  Note  94,  p.  106.     (b)  S«e  Note  95,   p.  106.     (c)    See  Note  96,  p.  107. 
{4  )  S—  Note  97,  p.  107. 


I 


Sect.    I.]  which  dLsqualijies,  67 

claims  under  ihe  same   custoiu,   cannoi  be  a  witness  in  support  of  ^°'"'"°"^''^ 

II-  1  •    I  .     r  1  I  .....  and  persons 

the  cJann,  as  lie  might  alierwards  use  tlie  verdict  m  Ins  own  cause  claiming  un- 
to establish  a  similar  customary  right  for  himself.  (1)  (e)     So  where  ^^'"  '="^'<""- 
in  an  action  on  the  case  against  the  defendant  for  not  repairing  his 
fences  contiguous  to  a  common,   (on.  which  common  the  plaintiff 
prescribed    for  cotnmon  appurtenant,)   one  of  ihe   points   in    issue 
was,  whether  the   defendant  was  liable  to    repair   by  reason  of  his 
occupation,  it  has  been  delei mined,  that  other  persons,  who  claim- 
ed a  right  of  pasture  over  the  same  conunon,  were    not  competent 
witnesses  for  the  plaintiff;  (2)   the  Court  said,  the  record  would  be 
evidence  for  another  conunoner,  that  the  occupier  of  the  adjacent 
land  was  bound  to  repair   this   f(  nee  ;  and   though    the    [)laintif?'  in 
that  case  claimed  a  right  of  common  by   prescription   in  right  of  a 
particular  messuage,  still  the   other  conunoners,  by  whatever  title 
they  might  clairn,    would  have  a  common   inteiest  in    casting  the 
burthen  of  the  repair  of  this  individual  fence  upon  the  occupier  of 
the  adjacent  land.      So,  where  the  question  i.<,  whether  in  a  partic- 
ular parish  or  vill,  certain  things  are    generally    exempted   from 
tithes,  or  subject  only  to  a  modus,  no  person  who  would  be  subject  Modus, 
to  tithes,  if  the  parson's  claim  were  to  be   allowed,    can   give  evi- 
dence in  support  of  the  modus    or  exemption.  (3)      So,  where  a  Customary 
defendant  in  an  action  of  trespass  justifies  under  a  custom   in  the   ^"^^' '"S   • 
parish  for  out-going  tenants  to  take  the  away-going  crop,  he  cannot 
call  as  witness  an  occupier    of  land,    who   insists  upon  the  same 
right  for  himself. 

"  It  is  no  good  objection  to  a  witness,"  says  Ch.  B.  Gilbert, (4)  Common  by 
"  that  he  has  common  by  cause  of  vicinage  in  the  lands  in  ques-  '^''^'"^8®" 
tion,  for  this  is  no  interest  in  the  land,  but  only  an  excuse  for 
trespass  ;  and  let  who  will  recover  the  lands,  the  whole  right  of 
common  remains,  so  that  he  is  certainly  indifferent  in  point  of 
interest  between  the  two  contenders."  However,  this  position 
may  perhaps  be  doubted,  as  the  rule  is  now  clearly  established, 
that  a  witness,  who  can  use  the  verdict  in  an  action  brought 
either  by    or   against  himself,   is  not  c;)inpetent  ;  and  since  com- 

(1)  1  T.    R.   302.  8  T.    R.  32.  Bull.         (3)  Ld.    Clanricard  v.   Lady  Denton 
N-  P.    283.     Hockley   v.    Lamb,  1  Ld.     1  Gwill.  360.    Gilb.  Ev.  113. 

Kaym.  731.  (4)  Gilb.  Ev.  109. 

(2)  Anscomb    v.    Shore,    1     Taunt. 
261. 


(c)  See  Nolo  9S,  p.  108. 

Vol.   I.  8 


58 


Of  ihe  Nature  of  the  Interest 


[Ch.  5. 


nion  by  cause  of  vicinage  is  in  the  nature  of  common  appendant, 
and  implies  immemorial  usage  of  intercommoning,  it  is  presumed, 
that  a  verdict,  finding  the  existence  of  such  an  usage,  would  be  ev- 
idence for  the  witness,  if  he  were  to  justify  under  the  same  usage 
in  an  action  of  trespass.  It  may  be  observed  that  Ch.  B.  Gilbeit 
does  not  once  mention  the  power  of  using  the  verdict,  as  a  criterion 
for  determining,  whether  the  witness  is  incompetent  ;  so  undefin- 
ed, at  that  tin)e,  was  the  rule  of  evidence  on  this  subject.  (/) 


Customary 
charge. 


Custom  as   to 
trade. 


Custom. 


Prescriptive 
right. 


On  the  trial  of  an  issue,  whether  the  owners  of  property  within  a 
chapelry  are  liable  by  immemorial  usage  to  a  charge  of  repairing 
the  chapel,  an  owner  of  property  within  the  chapelry  is  not  a  com- 
petent witness  to  disprove  the  liability,  though  his  property  is  in 
the  occupation  of  a  tenant,  who  agrees  to  pay  rent  without  any  de- 
duction :  for  he  is  immediately  interested  in  removing  such  a  per- 
manent charge,  and  thus  improving  the  value  of  his  estate.  (1)  And 
in  an  action  against  the  defendant  for  exercising  a  trade  in  breach 
of  a  custom,  which,  as  was  alleged  in  the  declaration,  confined  that 
and  other  trades  to  the  members  of  a  corporate  company,  a  wit- 
ness who  claims  for  himself  a  right  to  exercise  a  trade,  though  not 
a  member,  is  not  competent  to  negative  the  existence  of  such  a 
custom  ;  for  he  is  interested,  that  the  defendant  should  have  a 
verdict,  which  he  may  use  in  his  own  defence,  in  case  a  similar 
action  should  be  brought  against  himself.  (2) 

Where,  indeed,  the  issue  does  not  affect  any  customary  right, 
but  is  merely  on  a  right  of  common  claimed  by  prescription,  as  be- 
longing to  the  estate  of  A.,  one  who  claims  a  prescriptive  right  of 
common  in  right  of  his  own  estate  may  be  a  witness  ;  (3)  for  though 
A.  may  have  such  a  right  of  common,  it  does  not  follow  that  B. 
has,  nor  would  the  verdict  in  the  action  of  A.  be  evidence  in  B.'s 
action. 


3.   Incompetency  from  liability  to  costs. 


(1)  Rhodes  v.  Ainswortlj,  1  Barn.  (3)  Harvey  v.  Collison,  MS.  case, 
&  Aid.  87.  See  Meredith  v.  Gilpin,  stated  1  Sehv.  N.  P.  1  T.  R.  302. 
infra.                                                                    Bull.  iN.   P.  283. 

(2)  Comp  of  Carpenters   in  Shrews- 
bury V.  Hay  ward,  2  Doug   373. 


(/)    See  Note  99,  p.  109. 


S(3ct.    1.]  which,  (Unqualifies.  59 

Persons  liable  lo  the  costs  of  the  action  have  a  direct  and  irnme-  Liability  to 

costs, 
diate  interest  in  the  event,  and  therefore  are  not  competent  witnes- 
ses for  the  party  to  whom  they  wonld    be  so  liable,  (g)      Thus  the  Rail, 
defendant's  hail  are  not  competent  togive  evidence  for  their  princi- 
pal, (1)  because  they  are  immediately  answerable  in  case  of  a  ver- 
dict against  the  defendant,  (/i) 

For  the  same  reason,  a  co-defendant  cannot  be  examined  as  wit-  Party. 
ness  for   another   defendant,    though    he  is  a  formal   party   merely, 
and   has  no  interest   in  the  cause.  (2)      A    party  to  the  suit,  of  all 
persons,  has  the  strongest  interest  in  the  event  of  the  cause.      This 
will  be  the  subject  of  a  subsequent  section.  (3)  • 


In    an  action  against    the  sheriff  for  a  false   return,   the  sheriff's  Sheriff's  offi- 
officer,  who  has  given  security  for  the  due  execution  of  process,  is 
not  a  competent  witness,  to  prove  that  hs  endeavored  to  make  the 
arrest.  (4)(i)      So,  in  an  action  by  an  infant  plaintifF,  his  prochein  Procheia  amy. 
amy  and  guardian  are  not  competent  witnesses  for  him,  being  lia- 
ble lo  costs.  (5)  (j) 

One  in  partnership  with  the  defendant  is  not  a  competent  wit-  Partner, 
ness  for  the  defendant,  to  discharge  a  debt  to  which  as  partner  he 
would  be  jointly  liable.  In  an  action  of  assumpsit  for  goods  sold 
and  delivered,  the  plaintiff  having  proved  the  sale  of  the  goods  to 
the  defendant  and  to  one  J.  S.,  who  were  partners  in  trade,  Lord 
Kenyon  held  that  J.  S.  could  not  be  a  witness  for  the  defendant,  lo 
prove  that  the  goods  were  sold  to  himself,  and  that  the  defendant 
was  not  concerned  in  the  purchase  except  as  his  servant;  for  by 
discharging  the  defendant  he  benefits  himself,  as  he  would  be  liable 
to  contribute  and  pay  a  share  of  the  costs  which  the  plaintiff  seeks 
lo  recover.  (6) 

And  a  partner  is   not  a  competent  witness   for  the  defendant   lo 
prove  that  the  delivery  was  on   the  |)artnership   account,  and    that 

(1)  I   T.    R.    164.     Piesley    v.    Voii         (5)  Jamea   v.    Hatfield,    1    Sir.    548. 
Each,  2  Esp.  N.  P.  606.  Hopkins    v.    Neal,    2    Str.    1026.     Gilb. 

(2)  Dixon    V.    Parker,    2    Vcs.    2!9,  Ev.    107.     Head    v.    Head,  3   Atk.  511, 
and  other  cases  cited  in  13  Price,  512.  547.       See     1     Cox's    Cases    in    Chan. 

(3)  See  sect.  2  of  this  chap.  236, 

(4)  Powell    V.   Hord,    2    Ld.    [{ayin.  (6)     Goodacre    v.      Breanie,     Peake, 
1411.     1    Sir.    650,   S.    C.     3    Campb.  N.  P.  C.  174. 

633. 


ig)  See  Note  100,  p.  109.     (ft)  See  Note  101,  p.  10').     (i)  See  Note  102,  p.  110. 
(J)  See  Note  103,  p.  110. 


60  Of  the  Nature  of  the  Interest  [Ch.  5. 

Liability  to      the  goods  Iiad    been  paid  for.  (1)      So  a  partner  is  not  competent 


costs. 


for  the  defendant,  to  prove  his  joint  liabiHly  with  the  defendant, 
in  support  of  a  plea  in  abatement.  (2)  This  is  an  interest  which 
the  defendant  cannot  effectually  remove  by  a  release  to  the  witness; 
(3)  for  though  the  release  might  be  a  bar  to  a  suit  for  contribution 
between  the  defendant  and  the  witness,  yet  nevertheless,  if  the  de- 
fendant wee  to  (lie  or  become  insolvent,  the  plaintiff  would  have 
a  right,  by  a  Itill  in  equity,  to  compel  nil  the  parties  to  contribute, 
and  in  this  suit  the  witness   would  still  he  liable  to  his  share.  (4) (fc) 

In  the  cases  above  mentioned  the  witness  would  have  been 
competent  for  the  plaintiff,  though  incompetent  for  the  defendant. 
In  assumpsit  for  goods  sold  and  delivered,  and  the  general  issue 
pleaded,  a  partner  was  called  on  the  part  of  the  plaintiff,  to 
prove  that  the  defeiidant  had  a  share  in  the  concern  jointly  with 
himself;  and  the  court  of  King's  Bench  held,  that  he  had  been 
properly  admilted;  for  his  interest  would  rather  incline  him 
against  the  plaintiff,  since,  in  case  of  his  gaining  a  verdict,  he 
Avould  be  liable  to  contribute  at  the  suit  of  the  defendant.  (5) 
It  was  argued,  that  the  witness  was  interested  to  fix  the  defend- 
ant with  a  part  of  the  debt,  as  otherwise  he  might  himself  be 
made  liable  to  pay  the  whole,  '{'he  answer  to  this  is,  that  tlie 
defendant  would  have  a  light  to  recover  from  the  witness,  in  an 
action  at  law  for  money  paid  to  his  use,  the  whole  sum  recovered 
in  this  action,  if  he  should  shew  that  the  witness  was  originally 
liable  to  pay  it.  The  case  of  Hudson  against  Robinson,  (C) 
4  Maule  and  Selw.  476,  stated  infra,  is  another  instance,  to  shew 
the  competency  of  a  partner  of  the  defendant,  as  witness  for  tlie 
plaintiff. 

In   an   action   by   an  indorsee   against   an    indorser  of  a   hill    of 
exchange,  a  witness  who  is  indebted  to  the  plaintiti",  and  for  whom 

(1)  Evans  v.  Ye.itlierd,  2  Bing.  133.  (4)  By  Loid  Alvanley,  in  Cheyne 
Cheyne  v.  Koops,  4  Esp.  112.  v   Keeps,  4  Esp.    112.     In    this   case  a 

(2)  Young  V.  Bairnes,  1  Esp.  103.  release  was  pioposed  from  the  defend- 
He  would  have  been  competent  for  ant  to  the  witness,  and  also  from  the 
the     plaintiff.       Cosham     v.    Goldney,  witness  to  the  defendant. 

2  Stark.  N.  P.  C.  414  (5)    Btackett    v.    Weir,     5   Barn.    .^: 

(3)  Temins  v.    Smith,   l)y    Ld.    Ten-     Cres.  385. 

terden  C.  J.,  1  Ry.  &  ?,Io.  29.     Cheyno         (6)  By  Holroyd  J.   and    Littledale  J  , 
V.  Koops,  4  Esp.  112.  p.  388. 

(/O  See  Note  104,  p.  111. 


Sect.  ].]  whidi  disqualifies.  (>I 

the  defendant  indorsed  the  bill  as  security  for  the  debt,  is  not  com-  Liability  to 
petent  for  the  defendant:  being  liable  to  him  for   the  costs  of  the 
action.  (1) 

Tn  an  action  by  an  indorsee  against  the  acceptor  of  a  bill,  which  Drawer  of 

11.  ifi  1-  rii  wj  accommoda- 

had  been  accepted  for  the  accommodation  ot  the  drawer,  the  draw-  ^^^^  i^in 
er  is  not  a  competent  witness  for  the  defendant,  to  prove  that  the 
liolder  took  the  bill  for  an  usurious  consideration.  This  was  de- 
termined in  the  case  of  Jones  v.  Brooke.  (2)  The  Court  of  Com- 
mon Pleas  there  held,  that  the  witness  u  as  interested  to  defeat  the 
action;  for,  if  the  holder  should  succeed  against  the  acceptor,  the 
acceptor  would  not  only  have  a  right  of  action  against  the  drawer 
for  the  principal  sum,  but  also  for  all  damages,  which  as  acceptor 
he  might  sustain  in  being  sued  upon  the  bill;  the  drawer  of  an 
accommodation  bill  being  bound  to  indemnify  the  acceptor  against 
the  consequences  of  his  acceptance  for  his  accommodation. *(/) 

In  an  action  by  an  indorsee  against  the  maker  of  a  promissory 
note,  the  payee  and  indorser,  who  has  become  bnnkrupi  since  the  Payee  and 
date  of  the  note,  and  has  obtained  liis  ceriificale,  is  not  competent 
on  the  part  of  the  defendant,  to  prove  that  the  note  was  an  accom- 
modation note,  and  indorsed  to  the  plaintiff'  after  it  became  due; 
for,  having  obtained  his  certificate,  he  is  no  longer  liable  to  the 
plaintiff" on  his  indorsement,  but  he  will  be  liable  to  the  defendant, 
if  the  defendant  should  be  obliged  by  this  action  to  pay  the  prom- 
issory note,  which  he  had  given  for  the  witness'  accommodation.  (3) 

(1)  Bottomley   v.    Wilson,    3   Stark.  (3)    Maundrell  v:  Kennett,  1  Campb. 
N.  P.  C.  148.                                                     N.  P.  C.  40S    before  Biiylcy  J. 

(2)  4TauDt.  464. 


*In  the  case  of  Birt  v.  Kirshaw,  2  East,  45S,  the  Court  of  King's  Bench  held, 
hat  the  endorser  of  a  note,  who  had  received  money  from  the  drawer  to  take  it  up, 
was  a  competent  witness,  in  an  action  by  the  endorsee  against  the  drawer,  to  prove 
on  the  part  of  the  defendant,  that  he  had  satisfied  the  note;  since  he  would  be  lia- 
ble on  the  note  to  the  plaintiff,  if  the  defendant  succeeded,  or  to  the  defendant  in  an 
action  for  money  had  and  received,  if  the  plaintiif  succeeded;  and  the  Court  was  of 
opinion  that  the  witness  was  not  rendered  incompetent  by  the  circumstance  of  his 
being  also  liable  to  the  defendant,  in  the  laiter  case,  for  the  costs  of  this  action  in 
consequence  of  his  non-payment.  But  this  decision  is  inconsistent  with  later  au- 
thorities.    The  liability  to  the  costs  of  the  action,  as  appears  from  several  cases 


(Z)  See  Note  105,  p.  113. 


^2  Of  the  Nature  of  the  Interest         [Cli.  5. 

Liability  to  "All  agent  of  one  of  the  nnriies  (o  the  suit  is  not  a  competent  wit- 

ness,  It,  m  case  of  the  vcr(hct  being  against  the  parly  for  whom  he 

""^"^  is  called,  he  woiikl  bo  liable  to  him  for  the  costs  of  tho  action.      Tn 

Agent  to  clis-     an   action   on    a    bill    of  exchange  against   the    drawer,  where    the 
count  a  bill.  •  .       ,  ,        \  -w^         ,  ,    c       ,  •        •        i     i      i 

(jtjestion  was,  wheihcr  the  bni,  as  the  delendant  maintanied,  had 
been  delivei-ed  by  one  A.  B.  to  the  plaintiff  to  be  discounted,  or 
whether  it  had  been  delivered  in  payment  for  goods,  which  A.  B. 
had  bought  of  the  plaintiff,  Ch.  Jnst.  Gibbs  held  that  A.  15.  was  not 
a  competent  witness  for  the  defendant,  to  prove  the  former  of  these 
facts;  for  if  A.  B.  had  received  the  bill  merely  to  get  it  discouiiled, 
and,  instead  of  doing  so,  if  he  pledged  it  for  his  own  debt,  he  would 
be  liable  for  the  costs  of  this  action,  as  special  damage  resulting 
from  his  breach  of  duly.  (1)  (m) 

Agent  for  re-         Jn  an  action  of  assumpsit,  a  person  who  has  received  inoney  due 
ceiving  money.  i         .    r      i  i  i    •     -n-    •  ■  c 

Irom  the   deiendanl  to  the    plaintilr,  is  not  a  competent  witness  lor 

the  defenrlant  (according  to  what  is  now  understood  to  be  the  rule,) 
jto  prove  that  he  received  the  money  from  the  defendant,  as  agent 
for  the  plaintiff:  for  though  he  is  liable  to  pay  the  money  received 
or  to  refund  it  to  the  defendant,  he  is  liable  also  to  the  defendant 
for  the  costs  of  the  action,  in  case  the  plaintiff  should  have  a  ver- 
dict. (2) 


Co-obligor. 


In  an  action  on  a  joint  and  several  bond  against  one  of  the  obli- 
gors, who  was  surety  for  another,  that  other  obligor  (tiie  principal) 
is  not  competent  for  the  defendant,  to  prove  a  payment  of  money 
by  himself  in  discharge  of  the  bond:  for  he  has  an  interest  in  favor 
of  his  surety  to  the  extent  of  the  costs  of  the  action.  (3)  (n) 


(1)  Ilarman  v.  Lasbrey,  Holt,  N.  (3)  Townend  v.  Downing,  14  East, 
P.  C.  390,  by  Gibbs,  C.  J.  565.     See  also    Trelavvney  v.    Thomas, 

(2)  In  Ilderton  v.  Atkinson,  7  T.  R.  1  H.  Bl.  306.  And  Ball  v.  BostocU 
480,  the  witness  was  thought  to  be  1  Str.  575,  as  to  competency  from  lia- 
conipetent  for  the  defendant.      But  see  bility  to  costs, 

Jones  V.  Brooke,  supra,  p.   61,  and  14 
East,  567. 


here  mentioned,  is  a  substantial  objectiou  to  the  competency  of  a  witness;  and 
however  indifferent  he  may  be  in  other  respects  towards  either  party,  yet,  if  he  has 
incurred  such  a  liability,  he  has  an  immediate  and  direct  interest  in  the  event  of  the 
sait. 


(tw)  See  Note  106,  p.   113.     («)  See  Note  107,  p.  113> 


Sect.    ].]  ivhich  disquulijies.  ^>-^ 

4.  Other  direct  interest  in  the  event  of  the  suit. 

-  ,     Benefit  or  loss 

A   certain,  direct,  and    immediate   uiterest    will   disquahiy,    al- depending  on 

though  it  may  happen  that  the  verdict  in  the  cause  cannot  be  ^^^  *^^'^°^- 
evidence,  either  for  or  against  the  witness,  in  any  future  suit 
concerning  that  interest.  "  The  law,"  says  Ch.  Baron  Gilbert, 
"  looks  upon  a  witness  as  interested,  when  there  is  a  certain  benefit 
or  disadvantage  to  the  witness,  attending  the  consequence  of  the 
cause  one  viay."  (1)  The  following  examples  may  be  cited  to  il- 
lustrate this  general  rule. 

A  person  who  has  deposited  in  the  hands  of  a  sheriff,  in  lieu  of 
bail,  a  suai  of  money,  which  by  rule  of  court  is  made  to  abide  the 
event  of  the  suit,  is  not  competent  for  the  defendant.  (2) 

In  an  action  by  an  executrix  to  recover  a  debt  due  to  the  testa-  Kes'fJ""''^ 

...  legatee, 

tor,    a    re-iduary  legatee  has  an  interest,  in  favour  of  the  plantiff, 

even  after  releasing  all  claim  to  the  debt  in  question:  for  though 
the  plaintiff'  woidd  not  be  liable  as  executrix,  for  costs  to  the  de- 
fendant, she  must  pay  costs  to  her  own  attorney,  and  then  she 
would  be  entitled  to  be  allowed  out  of  the  estate,  and  thus  the  resi- 
due, in  whicli  tlie  witness  is  interested,  would  be  diminished.  (3)(o)' 

In  assumpsit  on  a  policy  of  insurance,  when  the  declaration 
averred  that  the  policy  was  made  in  the  names  of  the  plaintiffs  as 
iigcnis,  for  the  sole  use  and  benefit  of  A.  and  B.,  who  were  interest- 
ed in  the  goods,  A.  is  not  a  competent  witness  for  the  plaintiffs,  be- 
ing liable  to  the  attorney  employed  to  bring  the  action.  (4). 

If  a   plaintiff  agree  with  a  witness,  that,  in  case  he  recover  the  Agreement  for 
lands,  he  will   grant   him  a  lease  of  them  for   so   many  years,  this   ^"^^* 
excludes  his   evidence;  for   the   witness   would   have  a  fixed  and 
certain  advantage  by  the  event  of  the  verdict.  (5)  {p)      So  a  vjritness 

(1)  Gilb  Ev.  106.  Bull.  N.  P.  284.  (4)  Bell  v.  Smith  and  others,  ia 
3  T.  R.  36.  error,  5  Barn.  &  Cress.  188. 

(2)  Lacon    v.    Higgins,  3   Stark.  N.         (5)  Gilb.  Ev.  108. 
P.  C.  182. 

(3)  Baker   v.    Tyrwhitt,    4   Campb. 
21. 


(0)  See  Not«  108,  p.  114.        (p)  See  Note  109,  p.  119. 


tJ-i  Of  the  Nature  of  the.   Interest         [Cli.  5. 

lias  been  rejected,  ulio  if  the  plaintiff  failed  in  the  action  was  to 
repay  a  sum  of  money  in  his  hands  belonging  to  the  plaintiff",  but 
was  not  10  repay  any  part  of  it,  if  the  plaintiff"  succeeded.  (1)  [q] 

irndervvnicrs        I,i  (li(>  q^^q  q[  Forrester  V.  Pitrou,  (2)  an  action  on  a  policy  of  in- 

paviiig  cou-  ,  o       '  V    /  I  J 

diiionally.  surance,  where  the  defendant  called  another  underwriter,  as  wit- 
ness, who  in  his  examination  on  the  voire  dire  said,  he  had  paid 
the  loss  to  the  phiiniift'  upon  an  undertaking,  that  he  was  to  be  repaid 
in  the  event  of  this  action  failing,  and  that  he  had  since  received  a 
letter  from  the  plaintiff  promising  to  return  the  money  on  that 
event.  Lord  Ellenborough  C.  J.  on  the  trial  rejected  the  witness. 
On  a  motion  afterwards  for  a  new  trial  on  account  of  this  rejection, 
the  Court  sent  the  case  to  be  retried,  for  the  purpose  of  ascertaining 
more  particularly  the  tinie  when  the  undertaking  was  made  to  the 
witness;  but  on  that  occasion  Lord  Ellenborough  said,  "  If  a  per- 
son, who  is  under  no  obHgaiion  to  become  a  witness  for  either  of 
the  parties  to  tlie  suit,  choose  to  pay  his  debt  beforehand,  upon  a 
condition  that  it  is  to  be  determined  by  the  event  of  that  suit,  he 
becomes  as  much  interested  in  the  event,  as  if  he  were  a  party  to 
a  consolidation  rule." 

Witness  Yn  an  action  of  trespass  ae^inst  a  sheriff',  where  the  question  was, 

discharging  his  i  o  .... 

owndebt,wiih  whether  goods,  which  had  been  taken  by  hmi  in  execution  in  a 
qies"ii^°n.' '"  suit  against  A.  B.,  belonging  to  A.  B.  or  to  the  plaintiff",  A.  B.  was 
not  allowed  to  be  a  witness  for  tlie  defendant  to  prove  tlie  goods  his 
property;  for  the  effect  of  Iiis  evidence  would  be  to  pay  his  own 
debts  with  the  plaintiff' 's  goods.  (3)  (r)  Upon  the  same  principle, 
in  an  action  of  replevin,  in  which  the  defendant  made  cognizance 
as  bailiff"  of  A.  B.,  for  rent  due  from  the  plaintiff  to  A.  B., and  the 
question  was,  whether  the  plaintiff",  who  was  under-tenant  to  A. 
B.,  was  liable  to  pay  the  rent  mentioned  in  the  declaration,  or  a 
less  rent,  the  Court  of  Common  Pleas  held,  that  A.  B.  was  not  a 
competent  witness  on  the  part  of  the  defendant,  to  prove  that  the 
plaintiff  had  agreed  to  pay  him  the  higher  rent  mentioned  in  the 
declaration.  (4) 

(1)  Fotheringham      v.      Greenwood,  331.      Upton   v.    Curtis,    1    Bing.    210. 
1  Str.  129.  8  Moore,  52,  S.  C. 

(2)  1  Made  &  Selw.  9.  (4)  Upton  v.  Curtis,  1  Bing.  210. 

(3)  Bland  v.    Ansley,  2    New    Rep. 

{q)  See  Note  110,  p.  119.         (r)  See  Note  lU,  p.  120 


Sect.  1.]  which  (iisqualijies.  G5 

A  devisee,  who  takes  a  vested  interest  under  a  uill  in  the  testa-  DeVisee. 

tor's  estate,  has  been  considered  incompetent  to  prove  his  sanity,  or 

the  due  execution  of  the  will,  in  an  action  of  ejectment  brought  by 

another  devisee  against  the  heir-at-law.*     x\n  executor,  wiio  takes  Executor. 

a  pecuniary  interest  in  a  will,  is  competent  on  a  question  of  sanity 

in  an  action  of  ejectment;  for  the  verdict  would  not  be  evidence  in 

the  ecclesiastical   court,  as  to   the  personality.  (1)      And  upon  the 

same  principle,  a  legatee  seems  also  to  be  competent  in  such  a  case.  Legatee. 

An  heir-apparent  is  a  competent  witness  concerning  the  title  of  the  ^^''■• 

land;  for  the  heirship  is  a  mere  contingency:   but  a  remainder-man  Remainder- 

'  '  .  .  .  man. 

is  not  competent    on  such  a  subject,  having  a   vested    estate  in  the 

land.  (2)  (s) 

In  an  action  of  ejectment,  where  the  plaintiff  had  made  out  a  poggggsion  in 
prima  facie  case  against  the  defendant  as  tenant  in  possession,  the  ejectment. 
Court  of  Common  Pleas  held,  that  a  witness,  called  on  the  part  of 
the  defendant,  was  not  competent  to  prove  himself  the  real  tenant, 
and  that  the  defendant  was  only  his  bailiff;  for  the  verdict  would 
have  the  effect  of  turning  him  out  immediately;  it  was,  therefore, 
an  immediate  interest,  and  out-weighed  the  remoter  effect  of  his 
subjecting  himself  by  his  testimony  to  an  action  of  ejectment  and 
trespass  for  mesne  profits.  (3)  (f) 

Whenever  the   husband  of  a  witness   would   be  incompetent  to  Wife  of  inte- 

'  rested  witneis. 

give  evidence  on  account  of  his  interest  in  the  event  of  the  cause, 
it  must  necessarily  follow  that  the  wife  also  will  be  excluded,  hav- 
ing an  unity  of  interests  with  her  husband,  (n) 

If  there   is  a  direct   interest   in    the   event   of  the   suit,  it   will  Degree  of 
1         I  •  •  1  1,  1    •  •  .  interest, 

make  the  witness  incompetent,  however  small  and  inconsidera- 
ble the  degree  of  interest  may  be,  (v)  Thus,  in  an  action  of 
trespass,   where  the   question    was,  whether  a   corporation   which 

(1)  Doe   dem.    Wood   v.    Teagc,    5     Sayer,  45.     1  Ld.  Rayrn.  730. 

Barn.  &  Cress.  335,  (3)     Doe   dem.     Jones   v.   Wilde,    5 

(2)  Smith  V.    Blackham,  1  Salk.  283.     Taunt.  183.      I  Marshall,  7  S.  C. 

*  One  of  the  points  resolved,  on  the  uiai  at  bar,  in  Pyke  v.  Crouch,  1  Ld.  Ray-oi. 
730,  was,  that  a  legatee  is  incompetent  to  prove  a  will;  and  in  Halliard  v.  Jennings, 
1  Ld.  Raym.  505,  on  an  issue  o^decisavit  vel  non,  it  wa.^  assumed  as  a  clear  propo- 
sitioB,  that  a  devisee  was  not  competent. 


(»■)  See  Note  li2,  p.  122.     {t)  See  Note  113,  p.  123.     (w)  See  Nolo  lU,  p.  125. 
(v)  Seo  Note  115,  p.  125. 

Vol.   I.  9     • 


66  Of  the  Nature  of  the  Interest  [Cli.  5. 

had  inclosed  part  of  a  common,  had  left  a  sufficiency  for  the  coin- 
Freeman  mem-  moners,  a  freeman  was  considered  incompetent  to  prove  the  affir- 
ber  of  corpora-  .  i  i  •       i    r        i  r 

lion.  mative,  because  the  rent  must  liave   been   received  lor  the  use  ol 

the  corporation;  (w)  though  it  was  admitted  that  the  amount  of  the 
rent  was  exceedingly  small.  (1)  *  Hence  it  appears,  that  a  per- 
son who  loses  or  gains  the  smallest  sum  by  the  event  of  a  suit, 
whatever  may  be  his  rank,  fortune,  or  character,  is  as  incon)pe- 
tent  to  give  evidence,  as  one  who  may  be  interested  to  the  amount 
of  thousands.  This  is  the  unavoidable  consequence  of  the  gener- 
al rule.  If  interest  is  allowed  to  disqualify  in  any  case,  it  must  in 
all;  as  it  is  impossible  by  any  scale  to  measure  the  different  effects 
which  it  may  have  on  different  minds. 

5.  Cases,  in  which  the  witness  is  interested  on  both  sides,  (or) 

Interest  on  If  the   witness   has  an   interest  inclining   him   to   each  of    the 

both  sidet,        parties,  so   as    upon    the  whole  to  make  him   indifferent,   he   will 
be  competent   to  give   evidence   for  either   party.      Thus,   in   an 
action  of  assumpsit  for  money  paid   to  the  use  of  the  defendants. 
Captain  of  a     ^yho  were   ship-owners.    Lord    Kenyon   admitted   the  captain   to 
'*'"  prove  that   he  had   received  the   money  from  the  plaintiff  for  the 

defendant's  use;  for  he  stood  indifferent  between  the  parties, 
and,  whichever  way  the  verdict  might  go,  he  was  equally  an- 
swerable. (2)  So,  in  an  action  of  covenant  for  rent,  wiiere  the 
point  in  issue  was,  whether  A.  B.,  whose  title  both  the  plaintiff 
Priority  of  de- and  the  defendant  admitted,  had  demised  the  premises  first  to 
""'*•  the   plaintiff  or  to   a   third   person?  A.  B.   was  a   competent  wit- 

ness  to   prove   that   fact;  for   the  verdict   could    not   be  given   in 

(1)  Burton  v.  Hiiide,  5  T.  R.  174.  n.  (c)  Rocher  v.  Busher.  1  Starkre.N. 

(2)  Evans  v.  Williams,  7  T.  R.  481,         P.  C.  27. 


*  See  R.  V.  Mayor  and  Commonality  of  London,  2  Lev.  231,  R.  v.  Carpenter,  2 
Show  47,  and  case  of  City  of  London,  1  V'entr.  351,  contra.  In  these  cases,  fiee- 
men  were  admitted  to  be  witnesses  on  account  of  the  minuteness  of  their  interest, 
against  the  opinion  of  Jones  J.  The  law  of  the  case  in  2  Lev.  (where  the  point  is 
precisely  the  same  as  in  the  other  two  cases)  lias  been  doubled  by  Mr.  Justice  Bul- 
ler;  see  Bull.  N.  P.  290.  In  the  case  of  Dowdeswell  v.  Nott,  2  Vern.  317,  the 
Court  said,  "  The  objection  of  an  existing  interest,  though  never  so  small,  has  al- 
ways prevailed,  and  it  was  so  resolved,  upon  great  debate,  in  the  case  of  the  City  of 
London  concerning  the  water-bailiff" 


(w)  3ee  Xol*  116,  p.  125.      (x)  Bee  Not*  117,  p.  126. 


Sect.   I.]  which  disqualifies.  67 

evidence  in  nny  future  action  either  by  or  against  the  witness,  be- 
ing a  record  between  other  parties;  and  it  appeared  to  be  indif- 
ferent to  him,  whether'  he  had  the  one  or  the  other  as  his  ten- 
ant. (1) 

In  an  action  on  a  bill  of  exchange,  by  the  indorsee  against  the  Acceptor, 
drawer,  the  acceptor  is  a  competent  witness  on  the  part  of  the 
plaintiff,  to  prove  that  he  had  no  effects  of  the  drawer  in  his 
hands:  (2)  and  so  is  the  payee,  to  prove  that  he  indorsed  ih3  bill  Payee. 
to  the  plaintiff  before  it  became  due,  in  payment  for  goods;  for 
though  he  would  be  liable  to  the  plaintiff  for  the  goods  sold,  if  this 
action  fail,  yet,  if  it  succeed,  he  would  be  liable  to  the  defendant 
for  money  paid    (3)  {y) 

In  an  action  on  a  bond  against  one  of  several   obligors,  another  Co-obligor, 
of  the  obligors  is  competent,  for  the  plaintiff,  to  prove  the  execution 
of  the   l.K)nd.  (4)      So,  in  an  action  on  a    promissory  note,  by  the 
payee  against   the  maker,  a  joint   maker  of  the  note,  who   is  not  Joint  maljer  of 
sued,  is   competent  to   prove  the   defendant's  signature;   (5)  for  if  "°'^' 
the   plaintiff  recover  against  the  defendant,  the   witness  would  be 
liable  to   him  for  contribution;  and,  if  he  fail,  he  miglit  resort  to 
the  witness   for  the  whole,  and   in  that  case  the  witness   would   be 
entitled  to  contribution  from  the  defendant,  so  that   in  either  point 
of  view  the  witness  stands  indifferent  between  the  parties. 

Where  one  of  two  partners  drew  a  bill  in  the  name  of  the  Partner, 
firm,  and  gave  it  in  payment  to  his  own  separate  creditor  in  dis- 
charge of  his  own  debt,  the  Court  of  King's  Bench  held,  tiiat, 
in  an  action  by  such  creditor  against  the  acceptor,  the  other 
partner  might  be  called  for  the  defendant  to  prove  that  the  one 
who  drew  the  bill  had  no  auihority  to  draw  it  in  the  name  of  the 
firm;  and  that  the  bankruptcy  of  the  partners  would  not  vary 
the  question  as  to  his  competency;  for  though   he  would  be  liable 

(1)  Bell   V.   Harwood,    3  T.    R.  308.  (3)     Shuttleworth     v.     Stephens,      1 
See  Serie  v.  Serle,  2  Roll.   Abr.  685.  lit.     Campb.  N.  P.  C.  408. 

Trial,  (G.)  cited  Gilb.  Ev.  109.  (4)  Lockhart    v.   Graham,  1   Str.  35. 

(2)  Staples   v.  Okines,  1  Esp.   N.  P.         (5)  York  v.   Blott,  5   Maule  &  Selw. 
C.  331.  71. 


(y)  See  Note  US,  p.  131. 


68  Nature  of  the  Interest  lohich  disqualifies.      [Cfi.  5. 

to  the  defendant  if  the  plaintiff'  should  recover,  he  would  have  his 
remedy  over  against  his  partner.  (I). 

Partner.  j^^  ^j^^  ^^^^  ^j-  p[^,^gQp  y_  Rohinson,  (2)  wiiich  was  an  action  of 

assumpsit  for  the  non-delivery  of  goods  and  for  money  had  and  re- 
ceived, and  the  defendant  pleaded  in  abatement,  that  the  promises 
were  made  by  the  defendant  jointly  with  A.  and  B.,  and  not  by 
the  defendant  alone,  the  Court  of  King's  Bench  determined,  that 
A.  was  a  competent  witness  for  the  plainiifT,  to  prove  that  the  de- 
fendant was  not  authorised  or  eu)ployed  by  the  partners  to  make 
the  contract,  and  that  he  received  the  money  to  his  own  use;  for, 
although  the  plaintiff^'  should  succeed,  the  defendant  would  not  on 
that  account  be  precluded  from  suing  the  other  partners  for  contri- 
bution; the  record  in  this  action  would  not  operate  as  an  estoppel 
against  him  on  that  occasion,  because  there  is  no  mutuality,  out  of 
which  the  estoppel  can  arise;  the  record  could  only  be  used,  as  a 
medium  of  proof,  to  show  that  this  defendant  had  paid  in  the  ac- 
tion a  certain  sum;  and,  in  this  point  of  view,  the  verdict  in  favor 
of  the  plaintiff^"  must  be  considered  rather  as  prejudicial  to  the  wit- 
ness, {z) 

Co-trespasser.  j^,  actions  of  trespass,  it  is  the  cominon  practice  to  call  a  witness 
to  prove  that  he  committed  the  trespass  in  question  by  the  com- 
mand of  the  defendant.  (3)  It  is  true,  that  a  recovery  against  one 
of  several  co-trespassers  is  a  bar  to  an  action  against  the  others, 
and  would  operate  as  a  discharge  of  the  witness  from  an  action  at 
the  suit  of  the  plaintiff,  for  the  same  trespass.  On  the  other  hand, 
it  seems  that  he  would  be  liable  over  to  the  defendant  for  all  the 
costs  and  damages  recovered  against  him  in  the  action  of  trespass, 
if  the  defendant  can  show  that  the  trespass  was  not  committed  by 
his  order;  and  the  verdict  in  that  case,  could  not  be  used  in  evi- 
dence on  either  side.  ('1)  [a) 

(1)    Ridley  v.  Taylor,  13  East,  182, 1.  the  partner,  who  so  drew  the  bill,  would 

3.     This  was  laid    down   by  the  court,  be  liable  to  the  defendant  for  the  costs  of 

during  the  argument.     And   Lord  Ellen-  the  action. 

borough,  in  delivering  the  judgment    of  (2)  4  Maule  &  Selw.  476.     Cossham 

the    court    on   a   subsequent    day,  stated  v.  Goldney,  2  Starkie,  N.  P.   C  414,  S. 

that    both    the    partners  (the    one    who  P. 

drew   without  authority  in   the   name  of  (3)   5  Barn.  &  Cress.  387. 

the   firm   equally  with  the  other)   would  (4)  See  5  Barn.  &  Cress.  3S8.    Unless 

be  competent  for  the  defendant.     See  p.  this  is  so,  there  appears  to  be  a   strong 

.  184,  185.     It  was  not  considered,  in  this  interest  in  the  witness, 
case  (for  it  was  not  necessary),  whether 


(2)  See  Note  119,  p.  134.     (a)  See  Nets  120,  p.  134. 


Sect.  2.]       Of  Incompetency  of  Party  to  the  Suit.  69 

The  Court  of  King's  Bench  held,  in  the  case  of  Buckland  v. 
Tankard,  (I)  that  a  witness,  who  might  have  a  renriedy  by  action, 
whether  the  plaintiff  or  defendant  had  a  verdict,  was  nevertheless 
interested,  because,  under  the  particular  circumstances,  he  would 
have  greater  difficulty  in  the  one  case,  than  in  the  other,  to  enforce 
that  remedy.  However,  this  appears  to  he  the  only  case,  which 
has  been  decided  on  such  a  ground  ;  and  from  the  leading  cases 
on  this  subject,  which  rest  on  the  broad  ground  of  interest,  such  a 
circumstance  n)ay  now  more  properly  be  considered  as  having  a 
strong  influence  on  the  witness,  but  not  as  forming  any  solid  ob^ 
jection  to  his  competency,   {b) 

Sect.   II. 

Of  the  Rule  on  the  Subject  of  Interest,  considered  with  reference  to 
the  Parties  in  the   Suit. 

A  PARTY  to  the  suit  on  the  record   cannot  be  a    witness  at  the  Party    incom, 
trial  for  himself,  or  for  a  joint  suitor,  against  the  adverse  party,  (2)  Patent, 
on  account  of  the  immediate    and   direct   inter'est  which  he  has  in 
the  event,  either  from  having  a  certain  benefit  or  loss,  or  from  be- 
ing liable  to  costs,  (c) 

The  party,  therefore,  in  whose  name  an  action  is  brought,  can-  Trustees, 
not  be  a  witness,  though    he   be  merely  a  trustee  for  some   other 
person.  (3)  (d)     A  prochein  amy  suing  for  an  infant  is  not  compe- 
tent. (4)(e)   Persons  appointed  governors  and  directors  of  the  poor  Directors  of 
of  a  parish,  under  an   act  of  parliament,  which   authorises  them  to 
assess  rate  on  the  inhabitants,  but  in  case  of  appeal    makes    them 
liable  to  costs,  to  be  indemnified  out  of  the  parochial  fund,  are  not 
competent  witnesses  on  the  trial  of  such  appeal ;  as  they  are  parties  peraon  sued 
to  the  suit,  and  liable  to  costs  individually  in  the  first  instance.  (5)  (/)  '"  corporate 
But  there  is  no  objection,  it  is  said,  to  the  competency  of  persons, 

(l)5T.  R.  579.  (4)     ClutterbucU    v.    Lord     Hunling- 

(2)  1  Vern.    230.  1    P.    Wms.    596.     tower,  ]  Str.    505.     James  v.    Hatfield, 
Gilb.  Ev.   116.  1    Str.    548.     Hopkins    v.    Neal,    2  Str. 

(3)  Bauerman    v.  Radenius,     7     T.     1025.     Gilb.  Ev.  107. 

R.    (i59.     Phillips    v.    Duke    of    Buck-         (5)  R.   v.    St.  IMary   Magdalen,    Ber- 
ingham,    1    Vern.    230.       And    see   the     mondsey,  3  East,  7. 
cases  cited  in  13  Price,  512. 


(6)  See  Note  121,  p.  134.     (c)  See  Note  122,  p  134.    (d)  See  Note  123,  p.  189. 
(«)  See  Note  124,  p.  139.     (  /  )    See  Note  125,  p.  139. 


70  Of  Incompetency  of  Party  to  the  Suit.  [(.*h.  5. 

wlio  are  party  to  a  suit  in  a  corporate  capacity,  and  consequently 
not  inflividiially  liable  to  costs,  and  who  are  free  from  all  interest 
in  the  question.  Thus,  in  an  action  against  the  governors  of  the 
Foundling  Hospital  for  the  amount  of  work  done  by  the  plaintiff, 
Lord  Kenyon  admitted  several  of  the  governors  to  prove  the  bad- 
ness and  insufficiency  of  the  work.  (1)  {g) 

Order  for  ex-        Courts  of  equity,  in  granting  an  issue  to  be  tried  at  law,  frequent- 

aniiiiation  of      ,       ,  ,  ,  •       i     n  i  •        i  i  ■    ■ 

pariy.  'y  u'recl,  lliat  a  j)arty  to  tlie  suit  shall  be  exammed  at  the  trial  as 

a  witness  ;  such  an  order  waives  no  objection,  except  that  which 
arises  from  the  circumstance  of  the  witness  being  party  in  the 
cause. (2)  An  order,  allowing  one  party  to  examine  the  other, 
warrants  his  counsel  in  putting  questions  to  the  other  party,  as  to 
an  adverse  witness,  in  the  form  of  cross-examination.  (3) 

Exceptions.  An  exception  to  the  general  rule  is  stated  by  RoUe  C  J.,  in  the 

case  of  an  action  against  a  hundred  on  the  statute  of  Winton,  (4) 

In  action  on     where  the  plaintiff' (the    party    robbed)  was  allowed   to   prove  the 

Bt.  of  Winton.  pobbe;-y  and  the  amount  of  his  loss,  "  from  necessity,  on  default 
of  other  proof."  (5)  So,  in  the  case  of  Bennet  v.  Hundreds, 
Hertford, (6)  which'  was  an  action  on  the  same  statute,  brought 
by  a  carrier  for  a  robbery  committed  in  his  absence  on  his  servant, 

When  compe-  the  court  ruled  against  the  opinion  of  Rolle  C.  J.,  that  the  plain- 
tiff" might  prove  the  amount  of  the  money,  which  he  had  de- 
livered to  his  servant.  And  the  15th  section  of  the  statute  3  G.  2, 
c.  16,  recites,  tiiat  in  an  action  against  the  hundred  the  person 
robbed  may  prove  the  robbery,  and  the  property  of  which  he  was 
robbed. 

When  not.  But  though  the   plaintiff  may    prove  the  fact  of  the  robbery, 

yet  with  respect  to  matters  which  may  be  proved  by  other 
evidence,  he  is  not  a  competent  witness.  Thus  he  cannot  give 
evidence  to  prove,  that  the  place,  where  he  was  robbed,  is  with- 
in the    hundred,  against    which    he  has    brought    the  action.  (7) 

(1)  Weller    v.    The    Governors     of         (4)  St.   13  Ed.  1.  c  2. 

Found!.    Hosp.     Peake,    N.  P.    C.  153.  (5)   2    Roll.   Ab.    686.     Bull.    N.  P. 

And  see    Barrett   v.    Gore   and  another,  2S9.     1  Atk.  37,  38. 

3  Atk.  401.  (6)  2  Roll.  Ab.    686.     Vin.    Ab.  Ev. 

(2)  Rogerson      v.      Whittington,     1  (1),  pi.  34. 

Swanston,  Ch.  Rep.  39.  (7)  By  Page   J.    Rep.    temp.    Hard. 

(3)  Clarke  y.  Saffery,   1    Ry.  &  Mo.     83. 
126,  by  Best,  C  J. 


(g)  See  Note  126,  p.  139. 


Seel.  2.]    Of  Incompetency  of  Party  to  the  Suit.  71 

And  though    the    party  robbed,    who    broueht    the  action,    has  I"habitants  of 

'^  '       -^^  ,        ,  °  nundred. 

been  allowed   to  be  a  witness  even   in  his  own  cause,  yet  none  of 

ti)e  inhabitants   of  the   hundred    were  formerly  received   on  behalf 

of    the    hundred,  however    inconsiderable    their    interest    might 

be;   (I)    but  now   they  are  competent    witnesses   by   the    statute 

8  G.  2,  c.  16,  s.  15. 

One  other  exception   appears   to  have  been  made   in  the   case  I"  action  for 

.  .  ...  malicious  pro- 

of an   action  for  a  malicious  prosecution,  where  it   seems  to  have  secution. 

been  understood,  that  the  evidence,  which  the  defendant  himself 
gave  on  the  trial  of  the  indictment,  may,  under  certain  circum- 
stances, be  received  in  his  favor  on  the  trial  of  the  action.  In 
the  case  of  Johnson  v.  Browning,  (2)  Lord  Holt  C.  J.  admitted 
in  evidence  the  oath  of  the  defendant's  wife,  (who  was  the  only 
person  present  at  the  time  of  the  supposed  felony,  and  who,  as 
the  report  says,  could  not  herself  be  a  witness,)  to  prove  the 
felony  committed;  "  for  otherwise,  it  is  said,  one  that  should  be 
robbed  would  be  under  an  intolerable  mischief ;  if  he  prose- 
cuted for  such  robbery,  and  the  party  should  be  acquitted,  the 
prosecutor  would  be  liable  to  an  action  for  a  malicious  prosecu- 
tion without  the  possibility  of  making  a  good  delence,  though 
the  cause  of  prosecution  were  ever  so  pregnant."  And  Mr. 
Justice  Buller,  treating  of  this  action,  says,  "  As  it  may  come  to 
be  left  to  a  jury,  it  is  advisable  for  the  defendant  to  give  proof 
of  a  probable  cause,  if  he  be  capable  of  doing  it:  and  for  this 
purpose  proof  of  the  evidence  given  by  the  defendant  on  the  in- 
dictment is  good."  (S) 

Tn  the  case  of    the  Mayor  and  Commonalty  of  London,  (4)  ^^"^^^^^f^^ 

J  '  V    z  corporation. 

and  that  of  tiie  city  of  London  concerning  vvater-ballage,  (5)  the 
point  in  issue  was,  whether  the  corporation  was  entitled  to  cer- 
tain tolls;  in  the  first  case,  it  was  ruled  by  the  whole  court,  and 
by  three  judges  in  the  last,  that  freemen  (members  of  the  cor- 
poration) might  be  witnesses  in  support  of  the  claim,  because 
the  tolls  would  be  received  for  the  benefit  of  the  whole  corporate 
body,  and   the   interest  of  any    individual    must   therefore   be   in- 

(1)  R.  V.  Carpenter,  2  Show.  47.  (4)  2  Lev.   231.     And  see  Corp.  of 

(2)  6  Mod.  Rep.  216.  Sutton   Coldfield    v.    Wilson,  1    Vern. 

(3)  Bull.    N.   P.    14,   citing  Cobb  v.     254. 

Car.  1746.  (5)   1  Vent.  351. 


72 


Of  Incompelency  of  Party  to  the  Suit    [Ch.  5. 


Party  not 
compellable 
to  give  evi- 
dence. 


Rated  inhab- 
itants. 


Lessor  of 
plaintiff. 


Co-plaintiff 
witness 
against  an- 
other. 


considerable.  But  Mr.  Justice  Duller  has  doubted  the  law  of  ilie 
former  case,  (1)  and  its  authority  is  still  further  shaken  by  the  case 
of  Burton  V.  Ilinde,  before  mentioned.  (2)  (/i) 

As  a  party  to  the  suit  is  not  sufiered  to  be  a  witness  in  support 
of  his  own  interest,  so  he  is  never  compelled  in  courts  of  law  to 
give  evidence  for  the  opposite  party  against  himself.  On  a  ques- 
tion of  settlement,  it  has  been  determined,  in  the  case  of  the  King 
against  Wobm-n,  that  the  rated  inhabitants  of  either  parish,  being  in 
reality  the  parties  to  the  proceeding,  could  not  be  compelled  to  give 
evidence  against  their  own  parish.  (3)  So,  in  an  action  of  eject- 
ment, on  the  several  demises  of  two  lessors,  one  of  them  is  not  com- 
pellable to  give  evidence  for  the  defendant,  though  no  title  has  been 
proved  under  his  demise.  (4)  The  lessors  of  the  plaintiff,  said 
Lord  Ellenborough,  are  substantially  the  parties  on  the  record;  all 
are  jointly  liable;  that  lessor,  upon  whose  title  the  recovery  pro- 
ceeds, is  generally  the  trustee  of  the  other;  and  there  are  the 
same  reasons  for  protecting  them  from  beingexamined,  which  have 
produced  the  general  rule  of  law,  that  the  parties  on  the  record  can- 
not be  compelled  to  give  evidence  against  themselves,  and  are  not 
permitted  to  swear  in  their  own  favor,  (i). 

Where  one  of  several  co-plaintiffs  comes  forward  voluntarily 
to  disprove  the  defendant's  liability  to  the  demand  made  upon 
him,  it  has  been  thought,  that,  with  the  consent  of  the  adverse 
party,  he  may  be  adrnitted,  though  at  the  same  time  he  defeats 
the  claim  of  those,  who  jointly  sue  with  him;  (5)  for,  if  the 
plaintiff  were  to  make  a  declaration  against  his  interest  out  of 
court,  evidence  of  that  declaration  would  be  admissible;  and 
how  is  the  proof  less  credible,  said  C.  J.  Mansfield,  if,  with  the 
consent  of  the   defendant,    who  waives  all    objection  to   his   testi- 

(1)  Bull.  N.  P.  290.  liamson,    1  Taunt.    378,    by   Mansfield 

(2)  5  T.  R.  174.     See  ante,  p.  66.         C.    J.  and    Chambre   J.    who   were  the 

(3)  R.  V.  Woburn,  10  Ea.st,  403.  only  judjjos  present.  This  appears  to 
This  case  was  decided  before  the  late  be  the  only  authority  n.s  to  the  adinis- 
act,  St.  54  G.  3,  c.  170.  See  infra,  sibilily  of  one  co-plaintiff  against  an- 
Sect.  7,  of  this  Chapter.  other.       See     the     case    of     Mant    v. 

(4)  Fenn  dem.  Pcwtress  v.  Granger,  Manwaring  and  Chapman  v.  Graves, 
3  Campb.  N.  P.  C.  173.  infra,  p.  75,  as  to  the   incompetency  of 

(5)  Nordon    and    another    v.    Wil-     one  co-defendant  against  another." 


(h)  See  Note  l27,  p.  140.     (i)  See  Note  128,  p.  141. 


Sect.  2.]      Of  Incompetency  of  Party  to  the  Suit.  73 

mony,  he   declares   the   same   thing  upon  oath  at   the   time  of   the 
trial?  (j) 

The  eeneral  rule  seems  to    be,  that  one  of  several  defendants  is  Co-defendant 
o  1        1  r  when  compe- 

not  entitled   to  a  verdict,  separately  from   the  rest,  at   the  close  ol  tent  for  anoth- 

ihe  plaintiff's  case,  although  the  plaintiff' has  failed  in  proving  the  ^^' 
charge  against  him;  and  therefore  cannot  be  used  as  a  witness 
for  the  other  defendants,  until  the  whole  of  the  case  of  the  oth- 
er defendants,  exclusive  of  the  evidence  which  he  may  have  lo 
give,  is  entirely  finished.  (1)  When  that  is  done,  and  there  is  no 
evidence  lo  iiDplicate  liim,  a  verdict  may  be  taken  for  him  sep- 
arately, with  the  consent  of  the  counsel,  and  then  he  ajay  be  ex- 
amined on  behalf  of  the  rest,  (/c) 

If  any  person,  writes  C  B.  Gilbirt,  he  arbitrarily  made  a  de- 
fendant to  prevent  his  testimony  in  the  cause,  the  plaintiff  shall 
not  prevail  by  that  artifice,  but  the  defendant  against  whom  noth- 
ing is  proved,  shall  notwithstanding  be  sworn;  for  here  the  de- 
fendant does  not  swear  in  his  own  justification,  but  in  justifica- 
tion of  another,  with  whom  he  is  unnecessarily  joined:  and  if 
this  were  not  allowed,  the  plaintiff  mi^ht  turn  all  the  several  wit- 
nesses into  defendants,  and  thus  might  be  able  to  prove  what  he 
pleased  without  contest.  (2)  But  this  rule  must  be  understood  with 
reference  to  the  case,  where  there  is  no  kind  of  evidence  against 
such  defendant;  for  if  "there  be  evidence  against  him,  though  not 
enough  to  convict  him  in  the  judge's  opinion,  yet  such  person  can- 
not be  a  witness  for  the  other,  but  his  guilt  or  innocence  must  await 
the  event  of  the  verdict,  the  jury  being  judges  of  the  fact.  (/) 

In  trespass  against  a  person,  "  for  that  he,  together  with  A.  Co-trespasser. 
B,"  &c.  committed  the  wrong  complained  of,  the  defendant 
pleaded  that  A.  B.  paid  the  plaintiff"  a  guinea  in  satisfaction, 
and  issue  thereon;  the  defendant  called  A.  B.  as  witness,  and 
Eyre  C.  J.  allowed  him  to  be  examined,  for  what  he  might 
prove  could  not  be  given  in  evidence  in  another  action,  and  in 
effect  he  makes  himself  liable  by  swearing  that  he  was  concerned 
in    the  trespass.  (3)      But   if  the    plaintiff"  can    prove,    that   A.  B. 

(1)   See  Davis  V.    Living  and    others,  Ry.  &  Mo.  128. 
Holf,  N.    P.    C.  275.     Emmet   v.    But-         (2)  O.Wh.  Ev.  117.   Bull.  N.  P.  285. 
ler,  7    Taunt.    607.     Ward    v.    Bourne,  (3)     Peplet    v.    James,    Bull.    N.    P. 

staled    in  vol.    ii.     Wright   v.    Paulin,  1  286. 

(»  See  Note  129,  p.  142.     (k)  Bee  Note  180,  p.  142.     (/)  gee  Note  131,  p.  148. 

Vol.  I.  *  10 


74  Of  Incompetency  of  Party  to  the  Suit      [Ch.  5. 

was  concerned  in  the  trespass,  and  is  party  to  the  suit,  (which 
must  be  shown  by  j)roducing  the  original  or  process  against  him, 
and  proving  an  incfi'eclual  endeavour  to  arrest  him,  or  that  the 
process  was  lost,)  he  cannot  be  admitted  a  witness  for  the  defen- 
dant. (l)(m)  U  nothing  is  proved  against  A.  B.,  then  he  ought 
to  be  admitted.  (2)  (n) 

Co-defendent        I"  an  action  against  several  defendants,  if  one    plead  his  bank- 
blfnkrup'tcy      '""P^cy,  and   the   others  plead   the  general   issue,  the   former   can- 
not  be   admitted   to  give   evidence   for  the   rest,  though   lie   may 
have  received  his  certificate:  (3)    for,  in  case  of  a  verdict   for  thiJ 

„  „  plainlifT,  he  is  liable  to  ilie  costs  of  this  action.      If  a  nolle  prosequi 

Jyolle-prose-  ^  ^ 

qui.  had  been  entered   as  to  the  defendant,    proposed  to   be  called   as 

witness,  that  would  make  him  competent.  (4)  (o) 


Co-defendant        In  a  case  where  one  of  the  defendants,  on   an  indicttT>ent  for  ar? 

fined.'  "'^°"  assault,  pleaded  guilly,  and  was  fined,  and  paid  the  fine,  Pratt 
C.  J.  allowed  him  to  be  witnfess  for  another  defendant,  who 
pleaded  not  guilty:  he  considered  the  trial  as  at  an  end  with 
respect  to  him.  f5)(p)  And  he  would  be  a  competent  witness 
against  the  other  defendants.  On  the  trial  of  an  indictment  for 
a  conspiracy,  a  verdict  of  acquittal  may  be  taken  for  some  of  the 
defendants,  at  the  instance  of  the  prosecutor,  before  the  opening 
of  the  case  against  tlie  rest,  and  the  defendants  so  acquitted  may 
be  called  as  witnesses  for  the  i)rosecution.  (6)  {q) 

Co-defendant,        On  a  joint  indictment  against  several   for  a  misdemeanor,  a  de- 

in  indictment,     c       ^  ^  rr         •      t  x         ^    r      \  I-  -  r- 

sufferina  iud<T-  'endant,  who  surfers  judgment    by  deiault,  cannot   be  a  witness  lor 

ment  by  de-     \\^q  other  defendants.  (7)      The  admission  of  such  evidence,  said 

Lord   Ellenborough,   might   be  extended   equally   to    every   other 

criminal   ca?;e,  and   thus  one  of  the  party,  l.y   suffering  judgment 

(1)  Reazon  V.  Ewb.Tn!:,  Bull.  N  P.  so  ruled  by  Le  Blanc  J.  at  Lancaster. 
286.  Hill  V.  Fleming.  Rep.  temp.  1  Mooie,  339.  7  Tauat.  607.  See 
Hard.  264.  Llovd  v.  Wiiliams,  ib.  also  Moody  v.  King  and  Porter,  2  Paru. 
123.  '  &  Cress.  55S. 

(2)  Page   V.    Crock,    t-tyl.    40!        1  (5)  K.  v.  rietcher,  1    Sir.  633   R.  v. 
Atk.  452.                                                            r-hi.-arman    and   Idle,   Rep.  temp.    Hard. 

(3)  Raven  v.   Dunning  and    another,     303. 

3  Esp.  N.    P   C.    25.     Currin   v.    Cliild  (6)   R.  v.  Rowland  and  olliers,  1  Ry. 

and    anmhf-r,     3  Ci-iipb.     2S3,    S.    P.  &  T-'od.  402. 

Enimelt  v.  Rradlcy  and  othera,  1  IVloor>;,  (7)    R.  v.  Lafoiie    and   clhers,  5  Esn. 

C.  p.  332,  S.  P.  N   S.  C.  155. 

(4)  Said    by  Parke  S.  to   hava    becu- 


(r/i)  See  Note  132,  p.  144.     (n)  See  Note    133,  p.  144.     (o)  See  Note  134,  p. 
144.     (jD)  SeeKote  135,  p.  145.     {q)  See  A'ote  136,  p.  145. 


Sect.  2.]     Of  Inrompetency  of  Parly  to  the  Suit.  75 

by  default,  might  protect  tlie  rest;  there  is  a  community  of  guilt; 
they  are  ail  engaged  in  an  unlawful  proceeding;  the  offence  is  the 
offence  of  all,  not  of  a  single  individual  only,  (r) 

In  an   action  on  a  joint  contract   against  two   defendants,  where  Co-defendant 

1        1    c     I       T         IT''  r        J    »^  „  I     ;»   i"  iin  action  of 

one  let  judgment  go   by  dehiult.  Lord   Kenyon    relused   to  admit  ^.^.^i.^^t^  ^^f. 

him,  as  a   witness  for   the  other   defendant,  to  negative   the   con-  fering  judg- 

....  I  I  I      I       '"eiil  by  de- 

tract; for,  if  negatived   as  to  one,  it  fads  as  to  the  other,  and   the  fault. 

plaintiff  could   not  make   usa  of  the  judgment   by  default  against 

him.  (l)(s) 

Nor  is  lie  a  competent  witness  for  the  plaintiff,  for,  if  the  plain- 
tiff succeeds,  he  will  be  entitled  to  a  contribution  from  the  co-de- 
fendant, and  if  the  plaintiff  fails,  he  himself  will  be  liable  to  the 
whole  of  the  demand.  (2)-  (l).  In  the  case  of  Mant  v.  Manwar- 
ing,  (3)  the  Court  of  Common  Pleas  appear  to  have  held,  in  an  ac- 
tion on  a  joint  contract  against  several  partners,  tl)at  one  of  the  de- 
fendnnts  was  not  competent,  for  the  plaintiff,  without  the  consent 
of  the  other  defendants,  to  prove  the  partnership  between  himself 
and  them;  although  he  had  suffered  judgment  by  default,  and  had 
been  released  by  the  plaintiff  as  to  all  other  actions,  excepting  the 
one  then  on  trial,  (w) 

It  has  been  held  at  nisi    prius,  in  the  case  of  Ward  v.  Haydon,  Co-defendant 
that  a   defendant  in  an  action  of  trover,  who  suffers  judgment   by  in  action  of 
default,   may  be   a    witness   for   the   co-defendants,    as   he  is  not  judgment  by 
liable  to  the  costs  of  the  issiie  tried   against  the   other,  and    is  not  ^^f^"''- 
himself  released,    whatever  may    be   the   event  of  that   issue.  (4) 
But   one   who  suffers    judgment   by   default,  is   not   a   competent 
xvitness,  in   an  action    of  tres()ass,  for  the  plaintiff,  against  the  co-  In  trespass, 
defendants.      In  a  case  of  this   kind,  (5)   Mr.    Justice   Le    Blanc 
said,    "  The  general   rule   is,  tl)at   a    parly  to   the    record   is   not 
admissible   as  a    witness;  in   the  case   of  Ward    v.    Haydon,  the 
co-defendant  was   called   to  exculpate   the  other  def^nJant,    here 
it  is    proposed   to  call   a  co-defen<lant  to  inculpate  the  oih'.Ts;   the 
cases,  therefore  are  disiinguisliable."      And  he  added,  that,  "  when 

(1)   Brown    v.    Fox.    Ex.     Sum.   Asa.  (4)    Ward    v.    iliiydo:!    and  anotlior, 

1789,  M.  S.     8  Tannt.  141.  2  Esj)    R.  N.  P.  r;53. 

<2)   Brown    v.    Browi)    and    auothor,  {b)  Chiipm.in    v.   (Jraveg,   2  Campb. 

4  Taunt.  752.  3:53,  n    by  Lo  Blanc  J. 

(3)  7  Taunt   139,    8.  C.  2    Moore,  9. 


(r)  See  Note  137.  p.  146.     («)  Seo  Note  138,  p.  146.     (/)  See  Note  139,  p.  146. 
(u)  See  Note  140,  p.  146. 


76  Of  Incompetency  oj  Husband  or  Wife      [Cli.  b. 

there  had   been  an   innovation  in  the  rule,  he   was  not  disposed  to 
extend  it."  [y) 

In  ejectment  \^-^  3^  action  of  ejectment  against  two  defendants,  a  co-defend- 
ant, who  suflers  judgment  by  default,  has  been  considered  a  com- 
petent witness  for  the  plaintiff  to  prove  the  otlier  in  possession.  (1) 
Lord  Ellenborough  held,  that  the  verdict  in  this  case  would  not 
prevent  the  plaintiff  from  suing  the  witness  for  the  mesne  profits; 
that  the  only  supposed  interest  imputable  to  the  witness,  is  the 
possibility  that  the  plaintiff  will  sue  the  present  defendant  alone; 
but  this  is  such  a  remote  interest  as  cannot  render  the  witness  in- 
competent. 

If  a  material  witness  for  a  defendant  in  ejectment  is  made  a  co- 
defendant,  his  proper  course  is  to  let  judgment  go  by  default;  but, 
if  he  plead,  the  court  will  not  afterwards  upon  motion  strike  out 
his  name.  (2)  "  But  in  such  case,"  adds  Mr.  Justice BuUer,  "  if 
he  consent  to  let  a  verdict  be  given  against  him  for  so  much  as  he 
is  proved  to  be  in  possession  of,  I  see  no  reason  why  he  should  not 
be  a  witness  for  another  defendant."  (3) 

Witness  made  Where  a  witness  for  the  plaintiff  is  by  mistake  made  a  defend- 
defendant  by  ant,  the  court  will  on  motion  suffer  his  name  to  be  struck  out  of 
the  record,  even  after  issue  joined,  and  then  he  may  be  examin- 
ed: (4)  or,  in  the  case  of  an  information,  the  attorney  general 
may  enter  a  nolle  prosequi  as  to  one  of  the  defendants,  and  so 
make  him  a  witness.  (5) 

Sect.  III. 

Of  the  Rule  on  the  Subject  of  Interest,  considered  with  reference  to 
the  Husband  or  Wife  of  the  Party. 

Geaeralrnle.  As  a  parly  on  the  record  is  not  a  competent  witness,  so 
neither  is   the   husband   or  wife  of  the   party  competent  to  give 

(1)  Doe  dem.  Ilarrop  v.  Green  and         (3)   Bull.  N.  P.  235 

another,  4  Esp.  N.  C.  P.  I9S.  (5)    1  Sid.  441.     Bull.  N.  P.  285. 

(2)  Dormer  v.  Fortescuo,  Bull.  N.  P.  (5)  Rep.  temp.  Hard.  163.      Bull.  N. 
285.                                                                  P-  285. 


(t>)  See  Note  141,  p.  147. 


Sect.  5.]  of  the  Party.  77 

evidence  either  for  or  against  the  party.  (1)  No  other  relation  is 
excluded  :  (2)  a  father  may  give  evidence  for  his  son,  or  the  son 
for  his  father  ;  and  though  the  relation  between  them  may  influ- 
ence his  testimony,  it  will  not  render  him  incompetent.  The  rea- 
son for  excluding  the  husband  and  wife  from  giving  evidence,  ei- 
ther for  or  against  each  other,  is  founded  parlly  on  their  identity  of 
interest,  and  partly  on  a  principle  of  public  policy,  which  deems  it 
necessary  to  guard  the  security  and  confidence  of  private  life,  even 
at  the  risk  of  an  occasional  failure  of  justice.  They  cannot  be 
witnesses  for  each  other,  because  their  interests  are  absolutely  the 
same  ;  they  are  not  witnesses  against  each  other,  because  this  is 
inconsistent  with  the  relation  of  marriage. 

First,  the  general  rule  is,  that  they  cannot   be  witnesses  against  Not  witneasei 
,  ......  •     •      1  J-  Til  against  each 

each  other,  either  m  civu  or  criminal  proceedmgs.      It  has  been  re-  other. 

solved,  says  Lord  Coke,  (3)  that  a  wife  cannot  be  produced 
against  the  husband,  as  it  might  be  the  means  of  implacable  dis- 
cord and  dissension  between  them,  and  the  means  of  great  incon- 
venience. In  an  action  brought  by  a  woman  as  feme  sole,  the  de- 
fendant cannot  call  the  plaintiff 's  husband  to  prove  her  married, 
thereby  to  nonsuit  her.  (4) 

The  husband  and  wife  are  not  allowed  to  be  witnesses  against 
each  other  in  criminal  proceedings,  except  in  certain  cases  which 
will  afterwards  be  mentioned.  In  a  prosecution  for  bigamy,  the 
first  husband  cannot  be  admitted  to  prove  the  former  marriage 
against  the  wife  ;  (5)  such  evidence  would  -directly  criminate,  and, 
therefore,  is  not  admissible  for  the  reason  above  mentioned.  On  a 
trial  for  murder,  the  wife  of  the  prisoner  cannot  be  a  witness  against 
him.  On  a  prosecution  against  a  woman  and  others,  for  a  con- 
spiracy in  procuring  a  marriage  between  her  and  her  husband,  the 
man  is  not  a  competent  witness  against  her  in  support  of  the  pros- 
ecution. (6)  (w) 

(1)  Co.  Lit.  6,  (b).  Hawk.  b.  2.  (4)  Bently  v.  Cook,  cited  in  R.  ▼• 
c.  46.  8.  70.     Gilb.    Ev.    119.     Bull.  N.     Cliviger,  2  T.  R.  265,  269. 

P.  286.  (5)    Mary    Grigg's      case.     Sir    T. 

(2)  1  Hale,  P.  C.    303.     2  Hale,  P.     Raym.  1. 

C.  276.  Hawk.  b.  2,  c.  46,  a.  76.  Bull.  (6)  R.  v.  Sergeant  and  other*,  1 
N.    P.  287.     1  Wili.  332.  Ry.  &  Mo.  352,    before   Abbott  C.  J. 

(3)  Co.  Lit.  6,  (6). 


(w)  See  Nota  142,  p.  147. 


78  Of  Incompetency  of  Husband  or   IVife         [C\\.  o. 

Evidence/end        According  to  the  rule  laiil  down  in  the  case  of  the  King  against 
ate.  the  Inhabitants  ofCliviger,  (1)  a  husband  or  wife  ought  not  to  be 

permitted  to  give  any  evidence  that  may  even  tend  to  criminate  each 
otlier.  In  that  case,  on  an  appeal  against  an  order  of  removal  of  a 
pauper  and  also  of  a  woman  as  his  wife,  the  respondents  having 
proved  the  marriage,  the  appellants  called  the  pauper  for  the  pur- 
pose of  proving  his  former  marriage  vvilli  another  woman,  but  he 
swore  directly  the  reverse  ;  they  then  called  the  woman  to  prove 
*  the  alleged  former  n)arriage.  The  court  of  quarter  sessions  reject- 
ed the  witness  ;  and  the  Court  of  King's  Bench  determined,  that 
she  was  not  competent  lo  give  such  evidence.  Both  Mr.  Justice 
Ashurst^^nd  Mr.  Justice  Grose,  the  only  judges  present  in  court, 
were  of  opinion,  that  a  husband  and  wife  are  not  permitted,  from  a 
principle  of  public  policy,  to  give  any  evidence  that  may  even  tend 
to  criminate  each  other  ;  that  tlie  objection  is  not  confined  merely 
(o  cases  where  they  are  directly  accused  of  a  crime  ;  but,  even  in 
collateral  cases,  if  their  evidence  tends  that  way,  it  shall  not  be 
admitted  ;  for  although  the  evidence  of  ihe  one  could  not  be  used 
against  the  other  on  a  subsequent  trial  for  the  ofience,  vet  it  might 
lead  to  a  criminal  charge,  and  cause  the  other  to  be  apprehended,  (x) 

The  authorities  relied  upon,  in  support  of  this  decision,  are  a  pas- 
sage from  Lord  Hale's  Pleas  of  the  Crown  (2)  and  the  case  of 
Broughton  v.  Harpur.  (3)  But  the  former  authority  goes  no  fiir- 
ther  than  this,  that  the  wife  is  not  compellable  to  give  any  evidence 
charging  the  husband  with  offence;  the  passage  is,  "a  woman 
is  not  bound  to  be  sworn,  or  to  give  evidence  against  another  in 
case  of  theft,  &c.,  if  her  husband  be  concerned,  tliough  it  be  ma- 
terial against  another,  and  not  directly  against  her  husband."  In 
the  case  of  Broughton  v.  Harpur,  vvhere  the  plaintiff  made  title  to 
lands  as  son  and  heir  of  A.  B.  and  C.  D.  his  wife,  in  right  of  C. 
D.,  and  the  defendant's  case  was,  that  A.  B.  was  married  to  a  for- 
mer wife  then  living,  Gould  J.  adnilled  the  woman,  to  whom  A.  B. 
was  supposed  to  be  married,  to  prove  the  former  marriage;  but  af- 
terwards, as  the  report  slateSj  the  same  cause  being  tried  upon  the 
same  title  between  the  same  parties.  Lord  Holt  C.  J.  refused  to  ad- 
CD  2  T.  R.  263.  (3)  2  Ld.  Raym.  762. 
(2)  2  H.  P.  C.  301, 

(x)  See  Note  143,  p.  147. 


Seer.  S.]  of  the  Parti/.  '^^ 

mit  the  former  wife,  as  witness  to  prove  the  fact.  The  note  of  the 
case  is  very  short;  and  it  is  not  stated  for  what  reason  the  wife 
was  considered  incompetent  on  the  second  trial.  The  objeciion 
against  her  competency  on  the  first  trial  was  on  the  ground  of  in- 
terest; and,  although  at  that  time  this  cause  of  incompetency  was 
not  accurately  defined,  it  is  now  clearly  settled,  that  such  an  objec- 
tion could  not  be  supported,  and  that  it  was  projierly  overruled  on 
the  first  trial.  These  authorities,  therefore,  it  is  evident,  do  not  sup- 
port the  case  of  tlie  King  v.  Inhabitanis  of  Cliviger,  to  the  extent 
to  which  thai  case  has  gone;  they  certainly  do  not  lead  to  the 
conclusion,  that  husbands  and  wives  are  not  permitted  to  give  any 
evidence,  in  collateral  cases,  that  has  a  tendenaj  to  crhninate  each 
Other. 

The  rule  laid  down  in  the  case  of  the  King  v.  Cliviger  was  much  Tl'e  one  com- 

'^  ^  _      petent  lo  con- 

discussed  in  a  late  case,  the  case  of  the  King  against  the  Inhabit-  tradicttheoib- 
ants  of  All  Saints  in  Worcester,  (1)  in  which  the  Court  of  King's  ll^^^°  ^  "* 
Bench  was  of  oi)inion,  that  it  had  been  expressed  in  terms  much 
too  general  and  undefined.  That  case  was  as  follows:  On  an  ap- 
peal against  the  removal  of  Esther  Newman,  otherwise  Esther  Wil- 
lis, to  the  parish  of  All  Saints,  as  to  her  maiden  settlement,  the  re- 
spondents called  a  woman  of  the  name  of  Ann  Willis  for  the  pur- 
pose of  proving  this  fact,  namely,  that  at  a  certain  time  she  marri- 
ed one  G.  Willis.  The  appellants  objected  to  her  competency,  al- 
h^ging  that  they  were  prepared  to  p^ove  his  marriage  with  the  pau- 
]icr  at  a  subsequent  time.  The  quarter  sessions  admitted  the  evi- 
dence of  the  witness,  wlio  proved  her  marriage  with  G.  W.  about 
fourteen  years  ago;  and  cohabitation  between  this  witness  and  G. 
W.,  as  man  and  wife,  was  proved  by  other  evidence.  The  respon- 
dents then  proved,  that  the  pauper  gained  a  settlement  in  her  own 
right  ir.  the  appellant  parish,  and  that  she  had  about  three  years 
ago  marrieri  G.  W.;  and  this  marriage  was  proved  as  well  by  the 
pauper  herself,  as  by  a  witness  present  at  the  time  of  the  nsarrtage. 
The  counsel  for  the  appellants  contended,  that  the  evidence  of 
Ann  Willis  ought  to  be  struck  out.  But  the  court  of  quarter  ses- 
sions overruled  the  objection,  and  stated  the  case  for  the  opinion  of 
the  court  of  King's  Bench.     In  the  course  of  the  argument,  which 

(1)  Easter  Term,  1817,  May  4,  MS. 


^0  Of  Incompetency  of  Husband  or  Wife     [Cli.  5. 

took  place  on  sl)owing  cause  against  the  rule  for  setting  aside  the 
judgnjent  of  the  court  below,  tiie  case  of  the  King  v.  Cliviger  was 
brought  into  discussion.  And  after  much  ar§un)ent,  the  Court  ot 
King's  Bench  was  of  opinion,  in  the  first  place,  that  the  case  cited 
(adn:iiting  it  to  its  utmost  extent)  did  not  show  the  evidence  to  be 
inadmissible  at  the  time  tiiai  it  was  odered;  for  the  vvife  did  not 
contradict  the  husband,  as  he  had  not  been  examined, — she  did  not 
by  her  evidence  directly  criminate  him,  as  the  proceeding  related 
to  other  matters,  and  not  to  any  crinjinal  charge  against  him — and 
her  evidence  could  never  be  used  against  him,  nor  be  made  the 
groundwork  of  any  future  criminal  proceeding;  the  evidence, 
therefore  was  unobjectionable  when  received,  and  could  not  prop- 
erly be  expunged.  Tiie  court  were  further  of  opinion,  that  the 
rule,  laid  down  in  the  case  of  the  King  v.  Cliviger,  was  too  large 
and  general;  that  the  former  wife  would  have  been  competent  to 
prove  her  marriage,  though  the  second  marriage  had  been  first 
proved  by  the  respondents;  and  that  even  if  the  second  marriage 
had  been  proved  by  the  appellants,  still  she  would  be  competent, 
and  the  respondents  in  reply  might  have  called  her  to  prove  the 
former  marriage;  for  her  evidence  did  not  directly  criminate  the 
husband,  and  never  could  be  used  against  him,  nor  could  he  ever 
be  affected  by  the  judgment  of  the  court  founded  upon  such  evi- 
dence, (y). 

The  result,  therefore,  appears  to  be,  that,  on  the  trial  of  an 
appeal  against  an  order  of  removal,  (and,  upon  the  same  princi- 
ple, in  any  collateral  suit  or  proceeding  between  third  persons,) 
a  husband  or  wife  is  a  competent  witness  to  prove  a  former  mar- 
riage, even  after  proof  of  a  second  marriage,  although,  perhaps  the 
witness  would  not  be  compellable  to  answer  such  questions.  And 
the  reasoning,  upon  which  this  rule  is  founded,  is  equally  strong 
to  show,  that  the  one  may  be  called  as  witness  to  disprove  what 
has  been  stated  by  the  other;  and  that  either  the  party  who 
has  called  the  one,  or  the  opposite  party,  may  call  the  other  for 
the  purpose  of  contradicting.  Indeed,  the  reasoning  is  much 
stronger  in  this  case  than  in  the  former,  where  the  husband  or 
wife  is  allowed  to  prove  the  first  marriage  ;  for  although  they 
may  directly  contradict  each  other  as   to  a  particular  fact,  it  will 


(3/)  See  Note  144,  p.  14S. 


Sect.  3.]  of  the  Party.  81 

not  follow,  that  either  party  has  been  guilty  of  perjury.  And  as 
the  most  serious  inconveniences  might  result  from  a  different  rule, 
which  would  be  a  bar  to  the  full  and  complete  investigation  of  the 
subject,  in  cases  too  where  the  property,  the  cliaracter,  or  even  the 
life  of  a  party  may  be  at  stake,  it  appears  to  be  reasonable  and  neces- 
sary to  the  ends  of  justice,  that  such  evidence  should  be  admitted. 

Secondly,  the  general  rule  is,  that  neither  the  husband  nor  the  ^"'  compe- 
•<-        -11    1         11  1  •  -I  r  ,,...,  tent/or  each 

wde  will   be  allowed   to  uive  evidence   tor  each   other,  m  civd   orothar. 

criminal  proceedings.  (1)  (r)  In  a  prosecution  for  larceny,  or 
murder,  the  one  would  not  be  a  competent  witness  for  the  other. 
On  a  prosecution  against  several  persons  for  a  conspiracy.  Lord 
ElienboroughC.  J.  refused  to  admit  the  wife  of  one  of  the  defendants 
to  be  a  witness  for  the  others;  a  joint  offence  being  charged,  and 
an  acquittal  of  all  the  other  defendants  being  a  ground  af  dis- 
charge for  the  husband.  (2)  (a) 

The  same  reason  applies  to  the  declarations  of  the  husband  [b)  or  Ueclaratians. 
wife,  (c)  Where  an  action  is  brought  by  or  against  the  husband  or 
by  the  husband  and  wife  jointly  in  right  of  the  wife,  the  general 
rule  is,  that  the  declarations  of  the  wife  are  not  evidence  against 
or  for  the  husband.  (3)  In  an  action  of  trespass  against  a  hus- 
band and  wife,  the  wife's  confession  of  a  trespass,  committed  by 
her,  cannot  be  given  in  evidence  against  the  husband.  (4)  {d)  In  an 
action  for  goods  supplied  to  the  defendant's  wife,  who,  as  it  ap- 
peared, lived  separate  upon  an  allowance  fiom  him,  her  declar- 
ations as  to  the  receipt  of  the  allowance  could  not  be  admitted  in 
his  favor.  (5)  *     A  discourse  between  the  husbnnd  and   wife,  in 

(1)  Supra,  p.  77.  6   T.    R.    G80.     Barron    v.    Grillard,    3 

(2)  R.  V.  Locker  and  others,  5  Esp.  Ves.  &  ne;im.  165.  Baiter  v.  Mor- 
N.  P.  C.  107.     1  Ry.  &    Mo.  354.     R.     ley,  Bull.  N.  P.  28. 

V.  Frederick  and   another,  2   Str.    10D4,         (4)  Denn    v.    White  and  jinotber,    7 

S.  P.  T.  R.  112. 

(3)  Winsmore  Y.  Greenbank,  Willes,  (5)  Hodgkinson  v.  Fletcher,  4  Campb. 
577.      Alban    and   others   v.    Pritchelt,  N.  P.  C.  70. 

*  In  Scholey  v.  Goodman,  (1  Bing.  349,)  an  jvction  on  an  agreement,  liy  whieh 
the  defendant  agreed  to  live  separate  from  his  wife,  and  to  p.iy  tjie  plaintiff  a  cer- 
tain allowance  for  the  use  of  his  (defendant's)  wife,  a  questien  arose  as  to  the  ad- 
niissibiiity  of  the  wife's  declarations,  to  prove  that  she  was  living  in  a  state  of  adul- 
tery, during  the  time  for  which  the  aflovvance  was  claimed.  The  point  was  not 
decided  by  the  Court. 


(s)  See  Note  145,  p.  148.     (a)  See   Note  146,  p.  148.     (ft)  See  Note  147,  p. 
149.     (c)  See  Note  143,  p.  149.     ((Z)  See  Note  149,  p.  150. 
Vol.   I.  11 


82  Of  Incompetency  of  Husband  or  Wife    [Ch.  5. 

the  presence  of  a  third  person,  may  be  given  in  evidence  against 
the  husband,  hke  any  olher  conversation  in  which  he  may  have 
been  concerned. 

Letters.  Letters  written  by  the  husband  or  wife  are  subject  to  the  same 

rule  as  their  declarations.  In  general,  letters  written  by  the  hus- 
band to  the  wife  may  be  read  as  evidence  against  him;  but  her 
letters  to  hirn  would  not  be  evidence  for  him,  (1) 

Crjm.  COD.  In   an  action  for  criminal  conversation   with  the  plaintiff's  wife, 

the  wife's  letters  to  the  defendant  are  not  evidence  for  the  defend- 
ant against  the  husband,  nor  is  her  confession  evidence  for  the  hus- 
band against  the  defendant:  but  conversations  between  her  and  the 
defendant  are  evidence  against  him.  (2)  Evidence  of  the  man- 
ner in  which  the  husband  and  wife  used  to  live  together,  before 
her  connection  with  the  defendant,  is  clearly  admissible,  for  the 
purpose  either  of  increasing  or  lowering  the  damages:  and  upon 
this  principle  it  has  been  determined,  that,  where  the  husband  and 
Letters  of  wife  wife  have  lived  apart  from  each  other,  the  letters  of  the  wife  to  her 
to  us  an  .  husband,  written  before  any  suspicion  of  a  criminal  intercourse,  are 
admissible  in  evidence,  as  showing  their  demeanor  and  conduct, 
whether  they  were  living  on  terms  of  mutual  affection;  but,  on  ac- 
count of  the  obvious  danger  of  collusion,  it  ought  to  be  strictly  pro- 
ved, that  the  letters,  which  are  offered  in  evidence,  were  written  at 
a  time  when  the  wife  was  not  suspected  of  misconduct,  (-'i)  (e) 

Action  by  j^,  g^   action   brought   by   the   executrix  of  a  surviving   trustee 

trustee  of  .  f  i       i       i  i  r  • 

wife.  under  a  marnage-setilement,  to  recover  back  the  value  of  certam 

goods,  which  had  been  sold  by  the  defendant,  as  the  sheriff,  under 

on    execution    against    the    husband   of  the  cestui/  que  trusty  the 

husband   was   not  admitted   to  prove,  on  the   part  of  the  plaintiff, 

that  the  goods  had  been  conveyed   in  trust   to  the  plaintiff  for   the 

separate   use   of  his  (the    witness's)    wife.  (4)     In   this   case,    as 

the  witness's    debt  would  have    been    discharged    by   a    sufHcient 

(1)  Bull.  N.  P.  28.  101,  S.    C— The  cause  of  their   separ- 

(2)  Bull.    N.    P.    28.     Winsmore    v.     ation    was  not  shown  in  the  latter  case. 
Greenbaiik,  Willes,  577.  la  the  former,    they   were    living  separ- 

(3)  Edwards   v.    Crock,    4  Esp.    N.     ate,  as  servants  in  difTerent  families. 

P.    C.    39.     Trelawney  v.    Coleman,    1  (4)    Davis    v.    Dinwoodv,    4     T-    R. 

Barn.  &  Aid.  90.     2  Starkie,    N.   P.  C.     678. 


(e)  »Seo  Note  150.  p.  150. 


Sect.  3.]  of  the  Party.  83 

execution,  his  evidence  would  have  been  in  that  respect  against 
his  personal  interest:  (1)  but  on  the  other  liand,  it  was  the  wife's 
interest  to  have  the  properly  secured  for  her  separate  use;  and 
though  the  action  was  between  third  persons,  yet  it  direcily  afFect- 
ed  her  interest,  the  action  being  brought  by  her  trustee  for  her  ben- 
efit, and  the  real  point  in  issue  being,  whether  the  goods  belonged 
to  her  or  to  her  husband.  (/) 

This  eeneral  rule  of  evidence,  which   has   been  adopted  for  the  I"  case  of 
.  f,  .  (.   .  ,      ~  .       divorce. 

purpose  of  promoting  a  perfect  union  of  uiterests,  and  ot  securing 

mutual  confidence,  is  so  strictly  observed,  that  even  after  a  dissolu- 
tion of  marriage  for  adultery,  the  wife  is  not  admitted  to  give  any 
evidence  of  what  occurred  during  the  marriage,  which  would  have 
been  excluded,  if  the  marriage  had  continued.  (2)  This,  as  Lord 
Ellenborough  has  said,  is  on  the  ground,  that  the  confidence,  which 
subsisted  between  them  at  the  time,  shall  not  be  violated  in  conse- 
quence of  any  future  separation.  Thus  one  great  cause  of  distrust 
is  removed,  by  making  the  confidence,  which  once  subsists,  ever  af- 
terwards inviolable  in  courts  of  law. 

Upon  the  same  principle,  in  an  action   by  an  executor  against  a  Or  death, 
sheriff  for  a  false  return  to  a  writ  of  fi.  fa.,  it  has  been  held,  that  the 
widow  of  the  testator  cannot  be  allowed,  on  the  part  of  the  defend- 
ant, to  give  evidence  of  a  conversation  between  herself  and  the  tes- 
tator. (3)  {g) 

In  a  case  before  Lord  Hardwicke  C.  J.,  he  would  not  suffer  a  wo-  Or  consent, 
man  to   be  a   witness,  though  her  husband   consented:   (4)  "  the 
rule,"  he   said,  "  is  for   the   peace  of  families,  and   such   consent 
should  never  be  encouraged."  (/i) 

There  are  several   exceptions,  to  wliich   the  reason  of  the  gen-  Exceptions, 
eral   rule  on  this  subject  docs  not  oj^ply,  or  where  it  is  outweigh- 
ed  by    considerations  of    higher   importance.       In   the    following 
cases,   the  one   is  competent    to    give  evidence  against   the   oth- 
er.     And   in   all   those  cases,  in   which    the   one    is  competent  to 

(1)  See   Bland    v.    AnsJey,    2    New         (.3)  Doker  v.   Hasler,    I  Ry.   &  Mo. 
Rep.  331.  ins.  by  Best  C.  J. 

(2)  Monroe    v.  Twisleton,   cited     in         (4)  Barker  v.   Sir  Woolston     Dixie, 
Averaon  v.  Lord   Kinnaird,  6  East,  192.  Rep.  temp.  Hard.  264. 


(/)  See  Note  151,  p.  150.     (^)  S«»e  Note  152.  p.  151.     (A)  See  Note  153,  p.  151. 


84  OJ  Incompelenvy  of  Husband  or  Wife      [Ch.  r. 

Ewepfions.       give   oft-idence   agaimt  the  other,  the  one   is  equally  competent  to 
give  evidence  for  the  other.  (1)  (i) 

In  case  of  for-       jf  ^^  woman  is  taken  away   by  force  and   married,  she  may  be  a 
cible marriaie.  _  ,  -     ,•        i  o  tt    ►^  c\    c        i 

witness  agau)st  her  husband  indicted  on  slat,  o  H.  7,  c.  2,  *or  she 

is  not  a  wife  de  jure,  a  contract  obtained  by  force  having  no  obliga- 
tion in  law.  (2)  From  this  it  might  appear,  that  if  the  actual  mar- 
riao-e  were  valid  (as  where  the  woman  after  the  abduction  con- 
sents to  the  marriage  volimtarily,  and  not  induced  by  any  prece- 
dent menace,)  her  evidence  ought  not  to  be  allowed.  (3)  But  it  is 
said  to  have  been  ruled,  upon  debate,  that  a  wife  is  a  competent 
v/itness  for  as  well  as  against  her  husband,  on  the  trial  of  an  in- 
dictment on  this  statute,  although  she  has  cohabited  with  him  from 
the  day  of  her  marriage.  (4)  (  j) 

In  case  of  q         indictment  for  a  second  marriage  during  the  continuance 

bigamy,  ^  °  i  •  / 

of  a  former  marriage,  though  the  first  wife  cannot  be  a  witness,  (5) 

yet  the  second  wife  may,  after  proof  of  the  first  marriage.  (6)  Af- 
ter such  proof,  she  would  be  competent  to  give  evidence  for  as  well 
as  against  the  prisoner.  (7). 

for  pe^rsonaT"       A  wife  may   be  a  witness  on   the   prosecution   of  her  husband 
violence.  ^^^  ^^  offence   committed  against   her  person.      This  was    deter- 

mined by  all  the  judges  present,  on  Lord  Audley's  trial,  (8)  and 
has  been  siiicu  confirmed  by  the  highest  authority,  (9)  on  every 
principal  of  humanity  and  justice.  In  Azayr's  case,  on  an  in- 
dictment against  a  man  for  beating  his  wife.  Lord  Raymond 
suffered  her  to  give  evidence.  (10)  (k)   In  such  cases,  as  the  wife  is  a 

(1)  Gibbs  C.  J.,  in  R.  v.  Perry,  and  Raym.  1.  HavvI^.  b.  2,  c.  48,  s.  71. 
Abbott  C.  J.,  iu  R.  v.  Serjeant  and  oth-  (6)  Halo,  P.  C.  393.  Bull.  N.  P. 
ers,  1  Ry.  &  Mo.  354.  2S7.     1  East,  P.  C.  469. 

(2)  Svvendsen's   case,  5  St.  Tr.  465.  (7)   See  1  Ry.  &  Mo.  354. 

fol.  ed.  S- C.     14  Howell's  St.  Tr.  575.  (8)   1    St.    Tr.     393.  fol.     ed.    S.  C. 

Bull    N     P.  286.     Ramsay's  case,  cited  3  Howell's  St.    Tr.   413.     Hutton,  116. 

Rep.    temp.  Hard.  S3.      1  Hale,  P.  C  (9)  1   Hale,  P.  C.  301.     HawU.  b.  2, 

302    661  c-  46,  s.  77.     Probyn   J  ,  in  Rep.  temp. 

(3)  1  Hale,  P.  C.  302.  4  Bl.  Com.  Hard.  83.  Bull.  N.  P.  287.  1  Bl. 
209,  contra.  Comm.     448.        Doubted     in      Grigg's 

(4)  R.  V.  Perry,  1791.  Hawk.  P.  C.  case,  Sir  T.  Raym.  1,  and  in  Gilb. 
b.  1,  c.  40.  §  13.     The  wife  was  there  Ev.  120. 

called /or  her  husband.     See  this  case  (10)   1    Str.    633;  Bull.    N.    P.    287, 

mentioned    by    Abbott  C.  J.,    in   R.    v,  S.    C.       Jagger's    case,    1    East,    P.    C. 

Serjeant,  1  Ry.  &  Mo.  354.                     ^  454. 

(5)  Mary     Grigg's     case  ,   Sir    T. 

(t)  See  Note  154,  p.  151.    (  j)  See  Note  155,  p.  151.     (fc)   See  Note  156,  p.  152. 


Sect.  S.]  of  the  Party.  ci5 

competent  witness  against  the  husband,   so  also    is  she  a  compe-  Exceptions, 
tent  witness  for  him.  (1) 

A  wife  is  permitted  to  exhibit   articles  of  the  peace  against  her  Articles  of 
husband  :  (2)  and  the  court  will  not  receive  affidavits  on  tlie  part  P^''"^^- 
of  the  defendant,  to  contradict   the  truth   of  the  articles  exhibited 
against  him,  and    prevent   his  giving   surety.  (3)      So,  an  affidavit 
of  a  married  woman  has  been   admitted  to    be  read,  on  an  a])plica- 
llon  to  the  Court  of  King's  Bench   for  an   information   against  her 
husband,  for  an  attempt  to  take  her  away   by  force  after  articles  of 
separation  :  (4)  and  it  would  be   strange,  says  I\3r.  Justice  Buller, 
to  permit  her  to  be  a  witness  to  groimd  a   prosecution,  and  not  af- 
terwards be  a  witness  at  the  trial.  (5) 

On  the  trial  of  a   nian  for  the  murder    of  his   wife,    her    dying  Dying declara- 
declarations  are   evidence   against   him;  (6)  (/)  ihey  are  evidence 
also  for  him.      It  has  been  said  that  a  wife   may    be    a    witness 
against  her  husband  in  a  case  of  high  treason  :  (7)  but   there   are  Treason, 
authorities  the  other  way.  (8)  (m) 

Where  the  wife  has  acted  for  the  husband  in  his  business,  and  Declaration  of 
by  his  authority  and  consent,  he  adopts  her  acts,  and  will  be  husband.""  ^^ 
bound  by  any  admission  or  acknowledgment  made  by  her  re- 
specting that  business,  (n)  Thus,  where  the  wife  has  made  a 
contract  for  her  husband,  which  has  been  adopted  by  him,  her 
acknowledgment  as  to  the  amount  of  the  money  due  will  be  evi' 
deuce  against  him.  (9)  In  the  case  of  White  v.  Cuyler, 
which  was  an  action  of  assumpsit  by  a  servant  for  wages,  the 
plaintiff  was  allowed  to  give  in  evidence  a  deed  executed  by  the 
wife  of  the  defendant  at  the  time  of  the  hiring,  which,  though 
void  as  a  deed,  was  admitted  in  order  to  show  the  terms  of  the 
contract,  (10)      And  in  a  late  case,  in  an  action  of  assumpsit  for 

(1)  See  1  Ry.  &  Mo.  354.  C.  563.  John's  case,  1    East,  P.  C.  357. 

(2)  Bull.  N.  P.  287.  (7)  Dictum    in    Grigg's   case.  Sir  T. 

(3)  Lord  Vane's  case,  2  Str.  1202,  Raym.  1,  cited  in  Gilb.  Ev.  119,  and 
more    fully     stated     from    Mr.    Ford's     in  Bull.  N.  P.  289. 

MS.  in    13   East,    171,    n.    (a)  ;    R.    v.  (8)  Brownlow,  47. 

Doherty,  ib.  S.  t^.  (9)    Emerson    v.     Blonden,     1    Eep. 

(4)  Lady  Lawley's  case,  Bull.  N.  N.  P.  C.  142.  1  Str.  527.  Bull.  N.  P. 
P.  287.  Mary  Mead's  case,  1  Burr.  287.  Anderson  v.  Saunderson,  Holt, 
543.  N.  P.  C.  591. 

(5)  Bull.  N.  p.  287.  (10)  White  v.  Cuyler,    6   T.  R.  176. 

(6)  Woodcock's  case,   2   Leach,  Cr. 

(Z)  See  Note  157,  p.  152.     {m)  See  Note  158,  p.  152.     (n)  See  Note  169,  p.  152. 


86  Of  J ji competency  of  Husband  or  Wife     [Cli.  5. 

Exceptiom.  goods  sold  and  delivered  at  ihe  defendant's  shop,  an  offer  by  the 
wife  to  settle  the  demand  was  admitted  in  evidence,  as  slie  used 
to  serve  in  the  shop,  ant!  was  in  the  habit  of  Iransaciing  the  busi- 
ness in  his  absence.  (!)  Upon  the  same  principle,  the  wife's 
acknowledgments,  as  to  a  debt  being  due  for  goods  furnished  with 
her  husband's  consent  for  her  accommodation,  or  for  goods  pur- 
chased by  her  for  the  husband,  and  used  by  him,  have  been 
held  to  be  sufficient  to  take  the  case  out  of  the  statute  of  limita- 
tions. (2)  '^  (o) 

Examinntion  By  Stat.  21  J.  1,  c.  19,  s.  3>  &6,  vvhich  recites,  that  doubts  had 
wife!"  ^^^  '  arisen  upon  the  point,  it  is  provided,  "  that  after  the  party  is  de- 
clared a  bankrupt,  the  commissioners  may  exaniine  his  wife  on 
oath,  for  the  finding  out  of  the  estate,  goods,  and  chattels  of  such 
bankrupt,  concealed,  kept,  or  disposed  of  by  such  wife,  in  her 
own  person,  or  by  her  act  or  means,  or  by  any  other  person." 
Before  this  statute,  the  commissioners  could  not  examine  the 
bankrupt's  wife.  (3)  The  same  power  is  given  by  the  new  bank- 
rupt law.  (4) 

Appeal  to  or-       Upon  an  appeal  against  an  order  of  bastardy,   in   the    case  of  a 

der  of  bas-       married  woman,  Lord  Hardwicke  and  other  Judges  held,  that  she 
tardy.  '  ,      °  \  _ 

was  a  competent   witness  to    prove  her  criminal  connection  with 

the  appellant,    tliouglj    her  husband     was    interested  both  in  the 

question  and  in  the  event  of    the  appeal  ;  because    such   a  fact, 

so  secret  in    its    nature,  can    scarce    ever    be    proved  by  other 

(1)  Clifford  V.  Burton,  1  Bing.  199.  Hill,  2  Str.  1094,  where,  in  an  action 
9  Moore,  16.  of  assumpsit    brought    l)y    the    husband 

(2)  Gregory  v.  Parker,  1  Campb.  for  wages  earned  by  his  wife,  the  ac- 
394.  Palethorp  v.  Furnish,  2  Esp.  knowledgment  by  tho  wife,  as  to  her 
N.  P.  C.  511,  n.  Anderson  v-  Saun-  having  been  paid  by  the  defendant, 
derson,  Holt,    N.    P.    (^  .591.  2  Starkie,  was  not  allowed  to  be  evidence. 

N.  P.    C-    204,    S.  C.  And    see  15  Ves  (3)  Anon,  case,  1  Brownlow,  47. 

459.     The   cases   here  cited   appear   to         (4J  6  G.  4,  c.  16,  s.  37. 
have    overruled    the     case    of   Hall   v. 

*  In  the  case  of  Carey  v.  Adkins  (a)  (an  action  against  an  officer  of  police,  to 
recover  money  which  he  had  taken  from  the  plaintiff's  wife  on  suspicion  of  her 
having  got  it  unlawfully).  Lord  Ellenborough  admitted  the  account  given  by  her, 
respecting  the  money,  on  her  examination  before  a  magistrate,  to  be  given  in 
evidence  on  behalf  of  the  defendant  :  "  the  money,"  said  Lord  Ellenborough, 
"  appears  never  to  have  been  in  the  husband's  possession,  and,  aa  tho  wife  had 
the  exclusive  custody  and  management  of  it,  he  must  be  bound  by  what  she  said 
concerning  it." 

(a)  4  Campb.  94. 

(o)  See  Note  160,  p.  162. 


Sect.  5.]  oj  the  Party.  87 

evidence.  (1)     And  by  a  parity  of  reason,  said  Lord  Ellenborough  Exceptiona. 
in  the  case  of  the  King  v.  LufFe,  it  should  seem,  if  she  be  admit- 
ted as  a  witness  of  necessity,  to  speak  to  the  fact  of  the  adulterous  Adultery, 
intercourse,  it  might   also  perhaps  be  competent    for  her  to  prove, 
that  the  adulterer  alone  had   that  sort  of  intercourse  wiih   her,  by 
which  a  child  might   be  produced   within   the  limits  of  time  which 
nature  allows  for  parturition.     But  this   is  only  from  the  necessity 
of  the   thing:  she  is  not  competent  lo   prove   any   other  fact,  as 
want  of  access,  (2)  other   witnesses  may  be   reasonably  supposed  Non-accesi. 
capable  of  proving.     She  cannot  prove  want  of  access  even  after 
the  husband's  death.  (3)      This  rule  is  founded  on  the  broad  prin- 
ciple of  public  policy,  independently  of  any  possible  motives  of  in- 
terest in  the  particular  case.  (4)  (p) 

On  the  appeal  against  the  removal  of  a  woman,  as  the  widow  Appeal  against 

/•tT-.!  1-  r-  -1  c    \  •  \       •        order  of  remo- 

of  A.    B.  deceased,  prmia  lacie  evidence  oi  the  marriage  having  ^^\ 

been  produced  on  the  part  of  the  respondents,  the  Court  of  King's 

Bench  determined,  that   the  woman   was  a  competent   witness,  on 

the  part  of  the  appellants,  to  disprove  the  marriage.  (5) 

A  wife  may  be  a  witness,  in  an  action  between  third  persons  Action  be- 

•  (-    1        1       1         1      I  I    I        tween  third 

not  immediately  affecting  the  mteiest  ot  the  husband,  though  her  persons, 
evidence  may  possibly  expose  him  to  a  legal  demand:  as,  in  an 
action  between  third  persons  for  goods  sold  and  delivered,  to 
prove  that  the  goods  had  been  sold  not  on  the  credit  of  the 
defendant,  but  on  her  husband's  credit.  (6)  This  evidence,  it 
may  be  said,  was  in  some  measure  against  the  husband,  though 
he  was  not  a  party  in  the  suit.  On  the  other  hand,  to  reject  her 
evidence  in  such  a  case  would  be  a  hardship  on  the  defendant, 
who  may  have  no  other  means  of  defending  himself  against  an 
unjust  demand:  and,  though  upon  her  testimony  the  defendant 
might  have  a  verdict,  and  an  action  might  afterwards  in  conse- 
quence  be  brought  against  the  husband,  she  would  not  then  be 

(1)  R.  V.  Reading,  Rep.  temp.  (5)  R.  v.  Bramley,  6  T.  R.  330, 
Hardr.  82.  R.  v.  Bedell,  Andr.  8  Gilb.  R.  v.  St.  Peter's,  Burr.  Sett.  Cas.  25, 
Ev.  139.  R.  V.  Luffe,  8  East,  285.  S.  P. 

(2)  Ante,  p.  80,  (3)  R.  v.  Rooke,  (6)  Williams  v.  Johnson,  by  King 
1  Wils.  340.  R.  V.  Kea,  11  East,  132.  C.    J.      1  iitr.  504.     Bull.  N.   P.  287, 

(3)  R.  V.  Kea,  11  East,  132.  S.  C.     Vid.  ante,  p.  85. 

(4)  11  East,  132.     8  East,  202. 

(p)  See  Note  161,  p.  163. 


S8  Of  Incompetency  of  Husband  or  Wife     [Ch.  5. 

admitted  as   witness,  nor  could  her  evidence  in  the  first  suit   be 
j)roduced  against  him. 

In  an  action  of  trover  by  a  carrier,  for  a  box,  which  had  been 
delivered  to  the  defendant  by  mistake,  the  plaintiff  called  the 
owner's  wife  to  prove  what  the  box  contained;  but  Holt  C.  J. 
refused  to  hear  her  testimony,  on  the  ground  that  the  verdict  in 
that  action,  with  oath  of  what  the  carrier's  witness  swore,  might 
be  given  in  evidence  to  prove  the  value  of  the  goods  in  a  subse- 
quent action  brought  by  the  husband  against  the  carrier.  (I)  But 
it  seems  questionable,  how  the  verdict  in  this  cause  could  be  af- 
terwards used  as  evidence  by  the  husband;  and  the  husband  ap- 
pears not  to  be  immediately  interested  in  the  event  of  the  carrier's 
action;  for  whether  the  plaintiff  succeed  or  fail,  he  would  be  equal- 
ly liable  to  the  owner  of  the  goods,  [q) 

Evidence  of  a  In  the  case  of  Campbell  v.  Tremlow,  (2)  which  came  before 
whh^the'parfv  *^®  Court  of  Exchequer,  on  a  motion  to  set  aside  an  award,  one  of 
as  wife.  the  grounds  of  the  application   was,   that  the  arbitrator  had  re- 

jected the  evidence  of  a  woman  called  on  the  part  of  the  plaintiff, 
who  had  cohabited  with  him  for  several  years,  and  passed  as  his 
wife,  but  who  would  have  stated,  that  she  had  never  been  mar- 
ried to  him.  The  point  was  much  argued  at  the  bar.  The 
court,  considering  it  a  doubtful  question  (as  the  report  states),  de- 
clined giving  any  opinion,  as  it  was  unnecessary  for  the  determina- 
tion of  the  case:  and  they  refused  the  motion,  on  the  ^-ound, 
that  the  opinion  of  the  arbitrator  was  final  and  conclusive, 
all  matters  both  of  law  and  fact  having  been  left  to  his  de- 
cision. The  Lord  Chief  Baron  Richards  cited  a  case,  before 
Lord  Kenyon  on  the  Chester  circuit  in  the  year  J 782,  where, 
on  a  trial  for  forgery,  the  prisoner  called  a  woman  as  his  witness, 
whom  he  had  himself  in  court  represented  to  be  his  wife,  but 
afterwards,  on  hearing  an  objection  taken  to  her  competency, 
denied  that  she  was  married  to  him,  and  Lord  Kenyon  would 
not  permit  him  to  call  her,  after  having  represented  her  as  his 
wife.  (?') 

(1)  Tiley  v.    Cowling,    Lord    Raym.  but    there     the    plaintiff  sued    for    the 

744.     Bull.    N.  P.  243.     In  the  case  of  benefit    of    the    wife,  though  the    hus- 

Davi3  V.  Dinwoody,  before  cited,  p.   82,  band  was  not  a  party  to  the  suit, 

the  action  was    between  third    parties;  (2)  1  Price,  81. 


(g)  See  Note  162,  p  153.     (r)  See  Note  163,  p.  153. 


1 


Sect.  4.]    Of  Admissions  by  a  Party  to  the  Suitf  ^c. 


89 


Sect.  IV. 

Of  the  effect  of  Admissions  hrj  a  Parly  to  the  suit^  or  by  his  Agent^ 
against  the  Parlxfs  Interest,  (s) 

The  statements  and  representations  of  parties  to  a  suit,  made  by 
them  against  their  Interest,  are  evidence  against  them  (t)  and  in 
many  cases  they  will  be  the  strongest  evidence.  Upon  this  princi- 
ple, the  free  admissions  of  one  of  the  parlies  to  a  suit  on  the  mat- 
ter in  issue,  and  the  voluntaiy  confessions  of  a  prisoner  under  a 
criminal  charge,  are  always  received  in  evidence  against  the  per- 
son who  made  them. 

First,  with  respect  to  admissions. 

Admissions  by  a  party  to  the  suit   against  his  interest  are  evi- •^*^™'^*'°°^y 
•'        '       •'  ^  a  party  to  iuit. 

dence  in  favor  of  the  other  side,  whether  made  before  or  after  the 
commencement  of  the  action,  (tt)  whether  in  writing  (v)  or  by  parol. 
The  recital  of  a  fact  in  the  counterpart  of  an  indenture  is  evidence 
against  the  party  by  whom  the  deed  is  executed.  (1)  (w)  So,  a 
grant  to  a  corporation  by  a  certain  name  is  evidence,  against  those 
claiming  under  the  grantor,  that  the  corporation  was  at  the  time 
known  by  that  name.  (2)  Answers  in  Chancery  are  evidence  in 
trials  at  law,  against  the  parly  that  made  them;  (3)  (x)  and  very 
strong  evidence  as  they  are  delivered  in  upon  oath.  The  examina- 
tion of  a  party,  taken  before  commissioners  of  bankrupt,  is  evidence 
against  him,  although  the  questions  may  have  been  improperly  put 
to  him  with  a  view  to  the  action  (4),  and  though  he  might  have 
demurred  to  them  as  subjecting  him  to  penaliies.  (.'))  (y) 

The   declarations  of  a   £;uardian  are  not   admissible  in  evidence  Admission  by 
^       1  •  A  ■    r       1    guardian  of 

agamst  a  mmor,  who  sues  by  his  guardian.  (6)      And   the  mfant  s  party  not  evi- 

answer  in  Chancery  by   his   guardian  cannot  be  read   as  evidence  "®"°*' 

(1)  Burleigh  V.  Stibbs,  5  T.   R.  465.  (.'5)    Smith    v.     Beadncil.    1    Campb, 

(2)  Mayor,  &c.    of  Carlisle   v.   131a-     30. 

mire,  8  East,  493.  (6)  Cowling  v.   Ely,  2  Starkie,  N.  P. 

(3)  Bull.    N.    P.    237.      Doe    dem.     C.  3ti6,  by  Abbott  C.  J.     Webb  v.  Smith, 
Digby  V.  Steel,  3  Campb.  115.  I  Ry.  &  ".Mo.  lOo. 

(4)  Stoclifloth     V.     De     Tostet,    4 
Campb.  10. 


(8)  S«c  Note  164,  p.  15.3.  (/)  See  Note  1G5,  p.  151.  (w)  Sec  Note  1C6,  p.  159. 
(f)  See  Note  167,  p.  159.  (w)  See  Note  IGS,  p.  ICO.  (x)  See  Note  169,  p.  161. 
(y)  See  Note  170,  p.  161. 

Vol.  I.  12 


90  Of  Admissions  by  a  Pariy  to  ike  Suit,     [Ch.  5, 

against  ihe  infant  (1)  (2)^  '^  is  not  in  reality  the  answer  of  the  in- 
fant, but  of  the  guardian;  for  the  guardian  only  is  sworn  ;  and  the 
guardian  has  authority  to  sue  for  the  infant's  benefit,  not  for  his 
prejudice.  We  have  before  seen,  that  the  guardian  is  not  himself 
competent  to  give  evidence,  being  liable  to  the  costs  of  the  suit  (2) ; 
and  for  this  reason,  in  one  case,  his  declarations  were  improperly 
admitted.  (3) 

pany°"*°^'  Admissions  are  evidence  in  favor  of  the  other  side,  whether  made 

by  the  real  party  on  the  record,  or  by  a  nominal  party  who  sues  as 
a  trustee  for  the  benefit  of  another,  (4)  (a)  or  whether  made  by  the 
party  who  is  really  interested  in  the  suit,  though  not  named  on  the 
record.  (5)  (6)  'i'he  following  examples  will  illustrate  the  several 
parts  of  this  rule. 

By  party  suing  In  the  case  of  Bauernian  and  another  v.  Radenius,  (6)  which 
another^  '°  ^^'^^  ''^"  aclion  by  the  shippers  of  goods  against  the  captain  of  a 
ship,  for  not  delivering  the  goods  in  proper  condition,  a  letter 
written  by  the  plaintifis  was  given  in  evidence  on  the  part  of  the 
defendant,  in  which  they  entirely  exculpated  the  defendant  from 
all  misconduct;  and  it  appeared  also  from  the  letter,  that  the 
goods  were  shipped  on  the  risk  of  third  persons,  and  that  the 
plaintiffs  were  not  really  interested  in  the  suit:  the  counsel  on 
the  other  side  contended,  that  the  parties  really  interested  ought 
not  to  be  concluded  by  the  admission  of  the  plaiiitiffs,  who  were 
merely  nominal  parties  in  the  action:  Lord  Kenyon  was  of  a 
different  opinion,  and  the  plaintiffs  were  nonsuited.  The  Court 
of  King's  Bench  afterwards  affirn)ed  the  nonsuit,  Mr.  Justice 
Lawrence  on  that  occasion  said,  "  Van  Dyck  and  Co.,  (he  per- 
sons on  whose  risk  the  goods  were  shipped,  aj-e  in  this  difficulty; 
the  present  plaintifis  either  have  or  have  not  an  interest;  but  it 
must  be  considered  that  they  liave  an  interest,  in  order  to  sup- 
port the  action;  and  if  they  have,  an  admission  made  by  them, 
that  they  have  no  cause  of  aclion,  is  admissible  evidence.  I  have 
looked   into  the   books,  10  see  if  I  could   find   any  case   in  which 

(1)  By  the  opinion  of  all  the  judges  of         (4)   Bauerman  v.  R;ideniua,    7  T.    R. 
K.  B.  and  C.   P.  in  Ecc lesion  v.  PeUy.  664.     Craib  v.  D'Aeth,  ib.  670,  n. 
Carih.  79.      Gilb.  Ev.  44.      3  I>.  Will.         (5)  R.    v.   Hardwiclv,  11   East,    578, 
237.  n.  (E.)  589. 

(2)  See  ante,  p.  59.  (6)  7  T.  R.  664. 

(3)  James  v.  Hatfield,  I  Str.  547, 

(«)  See  Note  171,  p.  162.     (a)  See  Note  172,  p.  163.     (b)  Sea  Nota  173,  p.  1«T. 


Sect.  4.]  or  by  his  Agent.  91 

it  has  been  llolden,  that  the  admission  of  a  plaintiff  on  the  record 
is  not  evidence,  but  have  found  none,"  * 

In  an  action  of  debt  upon  a  bond  conditioned   to  pay   money  to  By  person  in- 

terested 
L.  D.,  for  whose   benefit  the    action    was   brought,  the  defendant  though  not 

proved,  that  L.  D.  had  said  in  a  conversation  respecting  this  bond,  P^'''y  •'"  ^^o 
that  the  defendant  owed  nothing;  upon  which  the  jury  found  for 
the  defendant.  On  a  motion  for  a  new  trial,  it  was  argued,  that 
the  declarations  of  L.  D.,  who  was  not  a  party  to  the  action,  ought 
not  to  affect  the  plaintiff,  and  affidavits  were  offered  to  explain  L.  D.'s 
evidence;  but  the  court  said,  that  the  affidavits  were  inadmissible, 
and  that  the  case  was  to  be  considered,  as  if  L.  D.  was  the  plain- 
tiff, the  action  being  for  L.  D.'s  benefit.  (1) 

In  an  appeal  against  the  removal  of  a  pauper,  declarations  by  a  By  rated  in- 
rated  inhabitant  of  either  parish,  concerning  the  facts  in  issue,  have  """^°^ 
been  adjudged  to  be  admissible  in  evidence  against  the  other  rated 
inhabitants  of  his  parish:  (2)  on  the  ground  that  the  rated  inhabi- 
tants are  the  parties  directly  and  immediately  interested  in  the 
event  of  the  proceeding,  although  the  appeal  is  entered  in  the 
names  of  the  parish-officers.  (3)  (c) 

Upon  the   same   principle,  declarations  by  the   petitioning  ere-  By  petitioning 

ditor  of  a    bankrupt  (v/ho   is    also   assignee    under    the  coQimis- 

sion,)  are  admissible  in   an  action  against  a  sheriff,  the  assignees 

having  given    instructions   for  the  defence,  and  thus   appearing  to 

be  the  real   parties  to  the  action,  (4)      So,  in   an   action   by   the  By  owner  of 

ship. 

(1)  Hanson  V  Parker,  1  Wils.  257.  10  East,  395.  These  cases  were  de- 
Davis  V.  Diuwoody,  supra,  p.  82.  cided  before  the  st.  54  G.  3.  c.  170. 

(2)  R.  V.  Hardwick,  11  East,  578.  (4)  Dowden  v.  Fowle,  4  Campb. 
R.  V.  Whitley  Lower,  1  Maule  &  38.  Young  v.  Smith,  1.  Esp.  N.  P. 
Selw.  636.  C   121. 

(3)  11   East,   589.     R.  v.    Woburn, 


•  I«  the  nisi  prius  case  of  Davis  v.  Ridge  and  others,  3  Esp.  N.  P.  C.  101.,  which 
was  an  action  by  a  judgment-creditor  of  P.  P.  on  an  award,  and  for  money  receiv- 
ed by  the  defendants  as  trustees  of  P.  P.,  Lord  Eldon  is  reported  to  have  ruled, 
that  admissions  by  one  of  the  trustees,  of  his  having  money  of  the  trust-estate  in 
his  bands,  were  not  binding  upon  the  others,  the  defendants  beiug  only  trustees, 
and  not  all  personally  liable.  And  in  an  action  by  the  Corporation  of  London  v. 
Long,  1  Campb.  22.,  where  the  question  related  to  the  powers  of  a  city-officer. 
Lord  Eilenborougb  is  said  to  have  held,  that  the  declarations  of  an  indifferent  indi- 
vidual of  the  corporation  were  not  admissible,  but  that  he  would  admit  whnt  the 
officer  himself  had  been  heard  to  say  upon  tho  subject. 


(€)  See  Note  174,  p.  168. 


92 


Of  Admissions  by  a  Party  io  the  Suit,     [Ch.  5. 


By  person  in- 
terested iu 
policy. 


By  partner, 
party  to  the 
suit. 


master  of  a  ship  for  iVeight,  the  declarations  of  the  owner  of  the 
ship  are  admissible  against  the  plaintiff,  as  the  action  is  brought 
for  the  owner's  benefit.  (1) 

An  action  upon  a  policy  may  be  brought  in  the  name  of  the 
person  who  cfi'ected  it,  though  he  bo  not  the  person  actually  inter- 
ested; yet  the  persons  interested  are  so  far  looked  upon  as  parties 
to  the  suit,  that  the  declarations  of  any  of  them  are  admissible  in 
evidence  against  the  plainlifT,  and  what  would  be  a  defence  against 
them  as  in  many  instances  a  defence  against  the  plaintiff.  (2) 

It  appears  to  be  a  general  principle,  that,  in  a  civil  suit  by  or 
against  several  persons,  \^ho  are  proved  to  have  a  joint  interest  in 
the  decision,  a  tleclaraiion  made  by  one  of  those  persons,  concern- 
ing a  material  fact  within  his  knowledge,  is  evidence  against  him, 
and  against  all  who  are  parlies  with  him  in  the  suit.  (3)  In  an 
action  of  covenant  against  two  defendants,  the  affidavit  of  one  of 
them  may  be  given  in  evidence  against  both.  (4)  So,  in  an  action 
by  several  partners  against  the  defendant  for  the  non-performance 
of  an  agreement,  a  declaration  by  one  of  the  partners  suing,  that 
the  goods,  to  which  the  agreement  related,  were  his  separate  pro- 
perty, is  evidence  against  all  the  plainiifis  suing  as  upon  a  joint 
contract.  (5)  In  an  action  against  persons  as  partners,  the  part- 
nership being  first  proved,  an  admission  by  one  of  the  defend- 
ants is  admissible  against  all.  (6)  And  an  admission  by  one 
defendant  of  his  j)artner£hip  W'ith  the  co-defendants,  who  were  su- 
ed with  him  as  acceptors  of  a  bill  of  exchange,  and  who  had  been 
outlawed,  has  been  received  as  proof  against  him  of  a  joint  prom- 
ise by  all.  (7)  (cZ) 


By  partner, 
not  a  party. 


The  rule   wlih   regard   to  the  admissions  of  partners  has   been 
extended   still   further.     In   an  action   by  a  creditor  against  some 

(1)  Smith   V.    Lyon,  3    Campb     4G5.  (3)    1 1  East,  589. 

See  Harrison  v.    Vallunce,  1    Bing     45,  (4)  Vicary's  case,  Giib.  Ev.  51. 

which     waa     decided    o:i    the    .-julhority  (5)   Liicus  and    others  v.  De  la   Coar, 

of  the  cases  above  cited,    but   seems   to  1  Maule  &  Selw.  249. 

be  a  much  stronger  case.  (6)  Nicholls  v.  Dowding  and    Kemp, 

(2)  By   Lord  Ellenhotough,    in    Bell  I  StarUie,  N.  P.  C.  81. 

V.     Ansley,    16     East,    143.     See    also  (7)   Sangster  v.    Mazarredo  and   oth- 

the    cabe    of   Duke    v.    Aldridge,    cited     ers,  I  Starlde,  N.  P.  C.  161. 
by    counsel    in    Baucrman  v.    lladenius, 
7  T.  R   665. 


{d)  See  Note  175,  p.  170. 


?ect.  4.]  or  by  his  Agr,nt.  ^^ 

of  a  partnership  firm,  one  of  whom  pleaded  his  certificate,  and  the 
plaintiff  entered  a  nolle  prosequi  as  to  him,  the  answer  of  this 
partner  to  a  bill  filed  against  him  by  other  creditors  was  received  as 
evidence  against  the  defendants,  not  indeed  to  prove  the  partner- 
ship, but,  that  being  established,  as  an  admission  against  those,  who 
were  as  one  person  witlih  im  in  interest.  (I)  And  the  admission  of 
a  partner,  though  not  a  party  to  the  suit,  is  evidence  against  anoth- 
er partner,  who  is  sued  as  to  joint  contracts  during  the  partnership, 
whether  made  after  the  determination  of  the  partnership  (c)  or  be- 
fore. (2)  (/)  But  the  statement  of  one  who  has  been  admitted 
into  partnership  subsequently  to  the  transaction  in  question,  is 
clearly  not  admissible  in  evidence  as  to  such  antecedent  transac- 
tion. (3) 

In  Whitcomb  v.  Whiting,  (4)  which   was  an   action  on   a  joint  By  joint  debt- 

.  ,  ,  or  not  a  party, 

and  several  promissory    note,   given  by  the   deiendant  and  others, 

to  which  action  the  defendant  pleaded  the  general  issue  and  the 
statute  of  limitations,  the  Court  of  King's  Bench  determined,  that 
proof  of  payment  of  interest  and  part  of  the  principal  within  six 
years,  by  one  of  the  others,  who  was  not  sued,  would  take  the  case 
out  of  the  statutes.  Lord  Mansfield  said,  "  payment  by  one  is  pay- 
ment by  all,  the  one  acting  virtually  as  agent  for  the  rest  :  and  in 
the  same  manner,  an  admis^sion  by  one  is  an  admission  by  all." 
The  payment  or  acknowledgment  in  this  case,  it  is  to  be  observed, 
was  m.ade  by  one  who  was  jointly  liable  with  the  defendant,  and 
originally  liable.  (5)  In  the  recent  case  of  Parham  v.  Raynal,  (6) 
the  decision  in  that  of  Whitcomb  v.  Whiting  has  been  reconsider- 
ed and  confirmed,  (g) 

Such    is   the   rule  respecting    admissions    in  the  case  of  joint  Admission  by 

,  1  1  t      I  .       co-trespasser, 

contracts,  or  where  several  persons  have  one  and  the  same   m- 

terest  in  the  subject  matter.     But  the  same  rule  cannot  be  applied 

to  actions  of  trespass  or  to   criminal  proceedings.     In  an  action 

of  trespass  against  several    defendants,    an  admission  by  one  of 

the  defendants  is  not  evidence    against  the    others  to  prove  the 

fact  of  their  being  co-trespassers  ;  and,   even   where   that  fact  is 

(1)  Grant  V.  Jackson,   Peake,   N.    P.         (3)  Calt  v.  Howard,    3    Stark.    N.  P 
C.    203,    by   Lord    Kenyon    C.   J.    See     C.  5. 

Thwaitea  V.    Richardson,  Peake,   N.  P.         (4)  2  Doug.  G61. 

^•^„6-„,     .  (5)    See    1    Barn.    &    Cress.  169.     2 

(2)  Wood   and   others  t.    Braddick,     Barn.  &   Cress.  29. 
1  Tannt.  104.  (6)  2  Bing.  306. 

(«)  ?io  Note  176,  p.  173.    (/)  See  Note  177,  p.  174.    {g)  See  Note  1787 p.  174. 


^•i  Of  Admissions  by  a  Party  lo  Kie  Suit,      [Ch.  5. 

fully  established,  it  seems  very  doubtful  whether  any  admissions  or 
declarations  made  by  one  of  the  defendants,  as  to  the  joint  motives 
or  designs  of  the  party,  can  be  received  as  evidence  against  the 
others,  except  so  far  as  they  accompany  tlic  act,  or  may  be  con- 
sidered as  forming  a  part  of  the  transaction.  The  rule  has  in  one 
case  been  laid  down  incidentally  with  greater  latitude,  and  it  has 
been  said,  (I)  that  alihoug'i  an  admission  by  one  of  several  de- 
fendants in  trespass  will  not  establish  the  others  to  be  co-trespass- 
ers, yet,  "  if  that  is  proved  by  other  competent  evidence,  the  dec- 
laration of  the  one,  as  to  the  motives  and  circumstances  of  the 
trespass,  will  be  evidence  against  all  who  are  proved  to  have  com- 
bined together  for  the  conmion  object."  Perhaps,  on  consider- 
ation, it  may  appear  that  the  rule  is  to  be  understood  with  some 
limitation  ;  and  from  analogy  to  the  principle  established  by  the 
greatest  authorities  in  cases  of  conspiracy,  the  true  limitation  of 
the  rule  appears  to  be  this,  that  such  declarations  only  are  admissi- 
ble as  have  been  made  wiih  reference  lo  a  concerted  plan,  and  in 
pursuance  of  a  common  object  ;  and  that  declarations  which  have 
not  been  made  with  reference  lo  that  object,  and  are  not  strictly  a 
part  of  the  transaction  in  question,  cannot  be  admitted  as  evidence 
against  co-trespassers,  (/i) 

Acts  and  de-  In  prosecutions  for  conspiracies,  it  is  an  established  rule,  that, 
co-conspira-  where  several  persons  are  proved  to  have  combined  together  for  the 
'^'''*  same  illegal   purpose,  any  act  done  by  one  of  the  party,  in  pursu- 

ance of  the  original  concerted  plan,  and  with  reference  to  the  com- 
mon object,  is,  in  the  contemplation  of  law,  as  well  as  in  sound  rea- 
Acta,  son,  the  act  of  the  whole  party:  and,  therefore,  the  proof  of  such 

act  will  be  evidence  against  any  of  the  others,  who  were  engaged 
in  the  same  general  conspiracy,  without  regard  to  the  question, 
whether  the  prisoner  is  proved  to  have  been  concerned  in  that 
particular  transaction.  This  kind  of  evidence  was  received  on  the 
trial  of  Lord  Stafford  and  of  Lord  Lovat,  on  the  trials  for  high  trea- 
son at  the  Old  Bailey  in  1794,  and  in  the  case  of  Stone  in  1796: 
in  which  las^  case  the  rule  was  completely  settled. 

(1)  By  Lord  Ellenborough,  R.  r.  Hardwick,  11  East,  685. 


(A)  See  Note  179,  p.  17«. 


Sect*  4.]  or  by  his  Agent.  ^^ 

In  that  case  fl),  evidence  liavina:  been  civ;  n,  which   warranted  Declaration* 
'  ,  .  ,    .  by  co-con- 

the  jury  to    consider,    wliether    the    prisoner    was    engnged   ni    a  spirators. 

conspiracy   for  treasonable  purposes,   it    was  determined,  that    a  ' 

letter,   written  by  one   of   the  conspirators  in    pursuance  of    the  L*^"®"^- 

common    design  (although  tl)e  letter  had    not    been  traced    into 

the  hands  of  the   prisoner,  or   to  his   knowledge),  was  admissible 

in  evidence,  as  the  act   of  the  prisoner  himself.      The  acts  of  the 

several   conspirators,  who  are  engaged    with  the  prisoner  in  one 

common  object,   are    evidence   against  him,    though   he   may  not 

have   been   directly  a   party  to  them;  they   are    evidence,  as  acts 

connected  and   in  conformity  with  his  own  acts.      "  He  who  plans 

the   thing,"  said   Mr.  Justice  Bayley,  in   his   charge   to  the  grand 

jury  in  Watson's  case,  "  or   who  devises   the   means   by  which  it 

is  to   be  efiected,  or  draws   in  otiiers  to  co-operate,  or  does  any 

other  act  preparatory  to   the   execution  of  the   thing   proposed,  is 

as  much  a  principal  as  he  who  executes   that  thing:  and  provided 

a  man    once  comes  into  the  common  purpose  and  design,  every 

previous   act   done   with   a   view  to  that  purpose  and   design,  and 

every  subsequent  act,  is  as   much  his   act,  as   if  he   had    done  it 

himself."  (2) 

The  same  rule,  subject  to  the  same  limitations,  must  apply  Declaratia?, 
to  the  declarations  of  conspirators,  as  well  as  to  their  acts. 
Any  declarations  made  by  one  of  the  party,  in  pursuance  of 
the  common  object  of  the  conspiracy,  are  evidence  against  the 
rest  of  tlje  party,  who  are  as  much  responsible  for  all  that  has 
been  said  or  done  by  their  associates  in  carrying  into  effect  the 
concerted  plan,  as  if  it  had  been  pronounced  by  their  own 
voice  or  executed  by  their  own  hand.  These  declarations  are 
of  the  nature  of  acts:  they  are,  in  reality,  acts  done  by  the 
parly;  and  generally  they  are  far  more  mischievous  than  acts, 
which  consist  only  in  corporal  agency.  All  consultations,  there- 
fore, carried  on  by  one  conspirator,  relative  to  the  general 
design,  and  all  conversations  in  his  presence,  are  evidence  against 
another  conspirator,  though  absent.       What   the  effect    of  such 

(1)  R  V.  Stone,  6  T.  R.  627.  I  East,         (2)  Watson's  case,  32   Howell's   St. 
P.    C.    97,    98.      25    Howell's   St.   Tr.     Tr.  7.     Brandreth's  ease,    32  Howell't 
1311.       S.     C.       Hardy's      Tri.il,    24     St.  Tr.    S54.    857.     Bedford   v.    BirleVi 
Howell's  St.  Tr.   437.  451.  700.    Home     3  Stark.  N.  P.  C.  85. 
Tooke's     Trial,    25    Howell's    tit.  Tr. 
127.    243.      Stone'8    case,  ib.    1268— 
1276.  1311. 


96  Of  Admissions  by  a  Party  to  the  Suit,  [Ch.  5. 

Dtclarationi     evidence  will  be,  as  C  J.  Eyre   observed,  on  the  discussion  of  a 

by  co-con-  .  r    i  ■      i  •     i     •       1 1 

■piiatoH.  question    of  this  kind    in    Hardy's    trial  (1),  must  depend    on  a 

variety   of  circumstances,  such   as,   whether  he   was  attending  to 

the  conversation,  whelher    lie  approved  or  disapproved:  but  stil! 

such  conversations  are  admissible  in  evidence. 

Hardy's  case.  A  question  arose  on  the  trial  of  Hardy  (2),  as  to  the  admis- 
sibility of  a  letter  written  by  one  of  the  conspirators  to  another 
person  in  a  distant  |)art  of  t!io  kingdom,  who  was  also  proved 
to  be  party  in  the  same  cons|)iracy.  This  was  a  le'ter  written 
by  the  chairman  of  a  meeting  in  London  to  a  dele^'ite  sent 
by  that  meeting  into  Scotland,  though  not  received  by  him  : 
it  was  stated  to  contain  encouragement  to  him  to  proceed  in 
the  cause  in  which  he  was  engaged  by  the  direction  of  the 
meeting  in  London,  and  that  meeting  was  proved  to  have  been 
composed,  among  others,  of  the  prisoner,  the  writer  of  the  letter, 
and  the  person  to  whom  it  was  addressed.  All  the  judges  held 
the  letter  lo  be  admissible,  excepting  the  Lord  Chief  Justice 
Eyre,  who  thought  it  could  not  be  admitted  against  the  prisoner, 
as  it  had  not  i)een  recei^'ed  by  the  person  to  whom  it  was  writ- 
ten, and  might,  perhaps,  never^  have  gone  out  of  the  writer's 
hands.  But  the  other  judges  were  of  opinion,  that  the  letter, 
being  addressed  by  one  cons))irator  to  anollier  conspirator,  and 
having  relation  to  the  con;^piracy  (not  merely  a  bare  description 
to  a  stranger,)  this  was  a  complete  act  in  that  single  conspirator, 
and  the  letter,  therefore,  ought  to  be  read  against  the  prisoner, 
as  showing  the  nature  and  tendency  of  the  conspiracy,  though 
the  letter  should  be  intercepted,  and  though  it  should  never  reach 
the  person  for  whose  perusal  it  was  intended. 

Wauon'scase.  In  the  late  trial  of  Watson  (3),  soine  papers  containing  a 
variety  of  plans  and  lists  of  names,  which  had  been  found  in 
the  house  of  a  co-consj)irator  before  the  apprehension  of  the 
prisoner,  and  which  had  a  reference  to  the  design  of  the  con- 
spiracy, and  were  in  furtherance  of  the  plot,  were  held  to  be 
admissible  evidence  against  the  prisoner:  all  the  judges  were  of 
opinion,  that  these   papers   ought  to  be  received,  there  being  in 

(1)  24  Howell's  St.  Tr.  704.  (3)  32  Howell's  St.   Tr.   84S,  850. 

(2)  24  Howell's  St.  Tr.  p.  453—477.     2  Starkie,  N.  P.  C.  140. 


Sect.  4.]  or  by  kis  Agent,  97 

this  case  strone  presmnplive  evidence,  that  they  were  in  the  house  Declarations 

I     r  •  II-  1    •     l^y  co-con- 

of  the  co-conspiiator  before   the  prisoner  s   apprehension,  and  in  spirators. 

the  same  state,  in  which  they  were  afterwards  found;  and  that 
this  circumstance  very  materially  distinguished  the  present  case 
from  Hardy's  case,  (cited  by  the  prisoner's  counsel,)  where  the 
papers  were  found  after  the  prisoner's  apprehension  in  the  pos- 
session of  persons,  who  possibly  might  not  have  obtained  the 
papers  till  afterwards;  whereas,  in  the  present  case,  the  room, 
iti  which  the  papers  were  found,  had  been  locked  up  by  one  of 
the  conspirators. 

A  question  also  arose,  in  the  same  case  (1),  as  to  the  admis- ^^^*°"'*"'®' 
sibility  of  another  paper,  found  among  those  before  mentioned, 
which  contained  written  questions  and  answers  of  a  description 
calculated  to  excite  mutiny  in  the  army;  one  objection  to  this 
evidence  was,  that  such  a  written  paper  could  not  be  admitted, 
aj  there  had  been  no  proof  of  its  ever  having  been  printed  or 
proposed  to  be  printed,  or  that  any  attempt  had  been  made  to 
circulate  it;  and  Sidney's  case  was  cited  as  an  authority.  But 
the  judges  held,  that  the  case  then  before  them  was  clearly 
distinguishable  from  Sidney's  case:  and  Mr.  Justice  Abbott 
particularly  stated,  that  the  paper,  in  that  case,  was  not  only 
an  unpublished  paper,  but  appeared  to  have  been  composed 
several  years  before  the  crime  was  supposed  to  have  been  com- 
mitted, and  that  the  true  objection  v/as,  not  that  the  paper  was 
unpublished,  but  that  it  had  no  reference  to  the  treasonable 
practices  charged  in  the  indictment.  The  paper,  produced  in 
Watson's  case,  was  afterwards  withdrawn  by  the  Attorney- 
General,  on  account  of  some  doubt  expressed  by  the  Court, 
whether  it  had  been  clearly  proved,  that  the  paper  in  question 
was  intended  to  have  been  used  in  furtherance  of  the  common 
purpose. 

What   one  of    the  party  may  have   said,  not   in   furtherance   of  Declarations 
'  .  not  connected 

the    plot,  but  as  a   mere   relation  of  sonie   past   transaction,  or   as  with  general 

to  the   share  which   some  of  the  others  have  had   in  the  execution  P'^"- 

of  the   common  design,  cannot,  it   is   conceived,  be   admitted   in 

evidence  to   affect  other   persons.     On   the  trial  of  Hardy,    for 

(1)  32  Howell's  St.  Tr.  S58.      2  Starkie,  N,  P.  C.  HI. 

Vol.  I.  13 


98  Of  Admissions  by  a  Party  to  the  Suit,      fCh.  5. 

Declarations     ]^\p\^  treason  (1),   a  question   arose  as  to  the  adn/issibility  of  a 

bv  co-conspir-  ,   °  .  ,       mi     i       n  i  i  •    i 

ators.  letter  written   by  inelwall,  and  sent  to  a  inu-d   person  not  con- 

r~~  nected    with  the  conspiracy,   containing    seditious    songs,    vvliich 

Hardy's  case,  the  letter  Stated  to  have  been  composed  and  sung  at  the  anniver- 
sary meeting  of  the  London  Corresponding  Society,  of  which 
society  the  prisoner  and  the  writer  of  the  letter  were  proved  to 
be  members.  The  argument  in  favor  of  the  evidence  was,  that 
the  letter  was  an  act  done  in  furtherance  of  the  conspiracy;  the 
objection  was,  that  the  letter  contained  merely  a  relation  by  the 
writer,  that  certain  songs  had  been  sung,  which  could  not  be 
evidence  against  the  prisoner.  The  majority  of  the  Court  decided 
against  the  admissibility  of  the  letter.  Tiie  Lord  Ch.  Justice 
Eyre,  the  Lord  Chief  Baron  iMacdonald,  and  Mr.  Baron 
Hotham  were  of  opinion,  that  the  letter  could  not  be  received. 
Mr.  Justice  Buller  (with  whom  Mr.  Justice  Grose  agreed,  in 
thinking  it  admissible),  said,  the  letter  ought  \o  be  received  in 
evidence,  for  the  purpose  of  shewing  what  was  the  nature  and 
e.xtent  of  the  conspiracy;  that  in  Damaree's  and  Purchase's 
cases,  evidence  was  received  of  what  some  of  the  parties  had 
done,  when  the  prisoner  was  not  there;  that  on  the  trial  of 
Lord  Southampton,  something  said  by  -Lord  Essex,  previous 
to  the  prisoner's  being  there,  was  admitted  as  evidence;  and 
that,  in  Lord  George  Gordon's  case,  evidence  of  what  different 
persons  of  the  mob  had  said,  though  he  was  not  there,  had  been 
admitted.  Biu  ihe  Lord  Chief  Justice  Eyre,  and  the  oiher 
judges,  considered  the  letter,  not  as  an  act  done  in  prosecution 
of  the  plot,  but  as  a  mere  narrative  of  what  had  passed.  "  Cor- 
respondence," said  the  Chief  Justice,  "  very  often  makes  a  part 
of  the  transaction,  and  in  that  case  the  corresporidence  of  one 
who  is  a  party  in  a  conspiracy  would  undoubtedly  be  evidence, 
that  is,  a  correspondence  in  furtherance  of  the  plot;  but  a  corres- 
pondence of  a  private  nature,  a  mere  relation  of  what  had  been 
done,  appears  a  different  thing."  And  with  respect  to  the  cases 
alluded  to  by  Mr.  Justice  Buller,  theCh.  Justice  observed,  "  Li  the 
cases  of  Damaree,  and  Lord  George  Gordon,  the  cry  of  the  mob 
at  the  time  made  a  part  of  the  fact,  part  of  the  transaction,  and 
therefere  such  evidence  might  properly, be  received."  (i) 

(1)  24  Howell's  St.  Tr.  452.  475.     See  32  Howell's  St-  Tr.  351. 
(i)  See  Note  180,  p.  177. 


Seer.   4.]  or  by  his  Agent.  99 

The    statement   or   representation  of   an  a^ent  in   making  an  The  statement 

.  r    1  •  ,        of  an  agent, 

agreement,  or  in  doing  an  act  withui  the  scope  ot  his  autho- 
rity, is  evidence  against  the  principal  himself,  and  equivalent 
to  his  own  acknowledgment  (1):  for  what  the  agent  says  may 
be  explanatory  of  the  agreement,  or  determine  the  quality  of 
the  act  which  it  accompanies,  and  must  therefore  be  as  binding 
on  the  principal,  as  the  act  or  agreement  itself.  To  prove 
such  a  representation,  the  opposite  party  is  not  obliged  to  call 
the  agent,  but  may  establish  it  by  other  evidence.  Thus,  what 
an  agent  says  at  the  time  of  a  sale,  which  he  is  employed  to 
make,  is  evidence  as  part  of  the  transaction  of  selling;  but  the 
principal  is  not  bound  by  the  representation  of  the  ^agent  at  an- 
other time.  (2) 

In  the  case  of  Biggs  v.  Laurence,  (3)  whi^^li  was  an  action  for 
goods  sold  and  delivered,  Mr.  Justice  Buller  admitted  a  written 
paper,  by  which  the  defendant's  agent  acknowledged  the  receipt 
of  the  goods,  as  evidence  against  the  principal;  and  on  that 
evidence  the  plaintiff  recovered.  However,  it  was  on  one  occa- 
sion stated  by  counsel  in  argument  (4) ,  that  Lord  Kenyon  since 
that  case  had  frequently  ruled  the  contrary,  without  its  ever 
having  been  questioned;  and  this  statement  seems  to  have  been 
acquiesced  in  by  Lord  Kenyon  (5),  who  said,  "  that  it  was  not 
the  point,  upon  which  the  case  was  afterwards  argued  or  deter- 
mined, on  the  motion  for  a  new  trial,"  meaning  the  point,  that 
such  a  receipt  could  be  admitted  in  evidence.  It  does  not  appear 
from  the  case  of  Biggs  v.  Laurence,  whether  the  agent's  ac- 
knowledgment, of  having  received  the  goods,  was  made  at  the 
time  of  deliveiy,  or  on  what  other  occasion:  though,  upon  this 
fact,  according  to  the  cases  above  cited,  particularly  the  case  of 
Fairlie  v.  Hastings,  in  which  the  subject  was  fully  discussed  by 
the  Master  of  the  Rolls,  the  admissibility  of  such  evidence  may 
be  found  materially  to  depend. 

(1)  See  the  judgment  of  Sir  W.  Kent  v.  Lowen,  I  Campb.  177.  180. 
Grant,  Master  of  the  Roils,  in  Fariie  Prideaux  v.  Collier,  2  Starkie,  N.  P. 
▼.  Hastings,  10  Ves.  127.,  and  4  Taunt.  C.  67.  Drake  v.  Marryat,  1  Barn.  & 
619.  Cres?.  473. 

(2)  Helyar   v.    HawUe,    5   Esp.    N.  (3)  B  T.  R.  454. 

P.  C.   74.     Pete  V.    Hague,  5   Esp.    N.  (4)  Bauerman  v.    Radenius,  7  T.   R. 

P.    C.    135.       Alexander     v.    Gibson,  665. 

2  Campb.    555.     Palethorp  v.  Furnish.  (5)  See  10  Ves.  128. 

2   Esp.   N.    P.    C.    611.    n.      See   also 


100 


Of  Admissions  by  a  Party  to  the  Suit,     [Cii.  5. 


Statement  of 
agent. 


In  one  case,  indeed  (1),  Lord  Kenyon  C  J.  is  said  to  have 
refused  to  admit  an  agent's  letter  as  evidence  of  an  agreement 
against  the  principal,  holding,  that  the  agent  himself  ought  to 
be  examined.  "  If  the  agreement,"  said  the  Master  of  the 
Rolls  (2),  adverting  to  this  case,  "  was  contained  in  the  letter, 
I  should  have  thought  it  sufficient  to  prove  that  the  letter  was 
written  by  the  agent:  but  if  the  letter  was  offered  as  proof  of  the 
contents  of  a  pre-existing  agreement,  then  it  was  properly  re- 
jected." And  the  Court  of  Common  Pleas  has  determined,  after 
much  argument,  in  the  cases  of  h  ahl  v.  Jansen  (3),  and  Lang- 
horn  V.  Allnut  (4),  that  the  letters  of  an  agent  abroad  to  his 
principal,  contain!  ng  a  narrative  of  the  transaction  in  which  he  had 
been  employed,  were  not  admissible  in  evidence  against  the 
principal,  as  the  mere  representation  of  the  agent.  The  general 
rule  on  the  subject  was  there  fully  recognized  and  confirmed. 
"  When  it  is  proved,"  said  the  Chief  Justice,  "  that  A.  is  agent 
to  B.,  whatever  A.  does,  or  says,  or  writes,  in  the  making  of  a 
contract  as  agent  of  B.,  is  admissible  in  evidence,  because  it  is 
part  of  the  contract,  which  he  makes  for  B.,  and  which  there- 
fore binds  him,  but  it  is  not  admissible  as  the  agent's  account  of 
what  passes."  (5)  Such  declarations  are  admitted  in  evidence, 
not  for  the  purpose  of  establishing  the  truth  of  the  fact  stated, 
but  as  representations,  by  which  the  principal  is  as  much  bound 
as  if  he  made  them  himself,  and  which  are  equally  binding, 
whether  the  fact  staled  be  true  or  false. 


Letter  by 
clerk. 


A  letter  written  by  a  clerk,  whose  business  it  is  to  write  in  the 
name  of  his  employer,  will  have  precisely  the  same  effect,  as  if 
written  by  the  principal  himself.  Thus,  a  letter  from  the  de- 
fendant's clerk,  informing  the  plaintiff,  that  a  policy  had  been 
efiected,  was  held  to  he  good  evidence  of  the  existence  of  the 
policy;  and  the  defendant  was  not  allowed  to  prove  that  the 
letter  had  been  written  by  mistake,  and  that  the  policy  had  not 
been  made.  (6) 


Reference  to 
third  person. 


If  one  party  refers  to  another,  for  information  on  a  disputed  fact, 


(1)  Maesters   v.    Abraham,  1    Esp.         (4)  4   Taunt.    511.  Reyner  v.    Pear- 
N.  P.  C.  375.  Bon,  4  Taunt.  663.  S.  P. 

(2)  10  Ves.  127.  (5)  4  Taunt.  519. 

(3)  4  Taunt.  565.  (6)  Harding  v.  Carter,  Park.  Ins.    4. 


Sect.  4.]  or  by  his  Agent.  101 

to  n  third   person  as  authorised  lo  answer   for  him  (1),  or  employs  Statement  of 

an   agent  to  make   certain    propositions   respecting    a   transaction 

between  himself  and  another  (2),  he  is  bound  by  what  his  agent 
says  or  does  within  the  scope  of  his  authority,  as  much  as  if  it 
had  been  done  or  said  by  himself.  Thus,  for  example,  in  an 
action  for  goods  sold  and  delivered,  where  it  appeared  at  the  trial, 
that  in  a  conversation  between  the  plaintiff  and  defendant,  the 
former  asserted  that  he  had  delivered  the  goods  by  one  C,  and 
the  defendant  replied,  "  If  C.  will  say,  he  did  deliver  the  goods, 
1  will  pay  for  them,"  the  plaintiff  was  allowed  to  give  in  evidence 
C.'s  answer  respecting  the  matter  referred  lo  him.  (3). 

In  the  case  of  Fabrigas  v.  Mostyn,  a  point  arose,  which  may 
serve  as  another  example  to  illustrate  the  rule  here  laid  down.  (4) 
There,  a  witness  who  had  been  employed  by  the  defendant  to 
convey  certain  proposals  to  the  plaintiff,  explained  them  to  him 
by  an  interpreter,  from  whom  also  he  received  the  answer:  the 
question  was,  whether  the  words  of  the  interpreter  could  be  ^iven 
in  evidence  by  the  witness,  as  ti)e  answer  of  the  plaintiff:  or 
whether  the  interpreter  himself  ought  to  be  called,  as  the  witness 
understood  neither  the  questions  put  to  the  plaintiff,  nor  the 
answer  made  by  him.  But  Mr.  Justice  Gould  ruled,  that  the 
evidence  of  the  witness  was  clearly  admissible,  and  sufficient. 
Here  the  interpreter  was  the  accredited  agent  of  the  parties, 
acting  within  the  scope  of  his  authority,  and  in  the  execution  of 
his  agency,  (j) 

It  must  be  be  remembered,  that  the  cases,  in  which  the  decla-  General 
rations  of  an  agent  have  been  admitted  against  the  principal,  are 
exceptions  to  that  general  rule,  which  requires  evidence  to  be 
given  upon  oath:  and  the  exception  is  confined  to  such  state- 
ments, as  are  made  by  him,  either  at  the  time  of  his  making 
an  agreement  about  which  he  is  employed,  or  in  acting  within 
the  scope  of  his  authority.  "  Except  in  one  or  the  other  of 
these  ways,"  said  the   Master  of  the  Rolls  in  Fairlie  v.  Hast- 

(1)  Daniell  v.  Pitt,  1  Campb.  366.  Inncs,  1  Campb.  364.  Brock  v.  Kent, 
Lloyd  V.  Wiilan,  1  Esp.  N.  P.  C.  178.         ib.     n.    366.     Burt   v.    Palmer,    5  Esp. 

(2)  Gainsford  v.  Grammar,  2  N.  P.  C.  145.  Garnet  v.  Ball,  3  Stark. 
Campb.  9.  N.  P.  C.  160. 

(3j  Daniell  v.  Pitt,    1    Campb.    S66.         (4)   11  St.  Tr.  171. 
«  Esp.  N.  P.  C.  74.     S.  C.  Williams  v. 


(;■)  See  Note  181,  p.  180. 


102  Of  Admissions  by  a  Party  to  the  Suit,     [Ch.  5. 

Statement  of    ings(l),    "T  do  not  see  how  they  can  be   evidence   against    the 

principal:''  and  therefore  in   (hat  case,  (where  the  fact,   sought  to 

be  established,  was,  that  a  bond  had  been  executed  by  the  de- 
fendant to  the  plaintitT,  which  the  defendant  had  got  possession 
of,)  he  refused  to  admit,  as  evidence  of  this  fact,  the  declaration 
of  the  defendant's  agent,  who  had  been  employed  to  keep  the 
bond  for  the  plaintiff's  benefit,  and  who,  on  its  being  demanded 
by  the  plaintiff,  informed  him,  that  it  had  been  delivered  to  the 
defendant.  (2;  "  The  admission  of  an  agent,  (continued  the 
Master  of  the  Rolls,)  cannot  be  assimilated  to  the  admission  of 
the  principal.  A  party  is  bound  by  his  own  admission,  and  is 
not  permitted  to  contradict  it.  But  it  is  impossible  to  say,  a  man 
is  precluded  from  questioning  or  contradicting  any  thing,  that 
any  person  may  have  asserted,  as  to  his  conduct  or  agree  ent, 
merely  because  that  person  has  been  an  agent.  If  any  fact,  ma- 
terial to  the  jnterest  of  either  party,  rests  in  the  knowledge  of 
an  agent,  the  general  rule  is,  that  it  ought  to  be  proved  by  his 
testimony,  not  by  his  mere  assertion. "(/c) 

Rule  in  crimi-      q^  ^j^g    impeachment  of    Lord  Melville  (3)    the    Hou--e    of 

nal  case.  '  ^    ' 

Lords   decided,   that  a   receipt   given,  in   the   regular  and   official 

form,  by  Mr.  Douglas,  (who,  as  it  was  proved,  had  been  ap- 
pointed by  Lord  Melville  to  be  his  attorney,  to  transact  the 
business  of  his  office  of  Treasurer  of  the  navy,  and  to  receive  all 
necessary  sums  of  money,  and  sign  receipts  for  the  same,)  was 
admissible,  as  evidence,  against  Lord  Melville,  to  establish  this 
single  fact,  that  a  person,  appointed  by  him,  as  his  paymaster, 
did  receive  from  the  exchequer  a  certain  sum  of  money,  in  the 
ordinary  course  of  business.  "  The  first  step  in  the  proof  of  the 
charge,"  said  the  Lord  Chancellor,  "  must  advance  bv  evidence, 
applicable  alike  to  civil  and  to  criminal  cases;  for  a  fact  must  be 
established  by  the  same  evidence,  whether  it  is  to  be  followed 
by  a  criminal  or  civil  consequence;  but  is  a  totally  different 
question,  in  the  consideration  of  criminal  justice,  as  distinguished 
from  civil,  hovv  the  noble  person,  now  on  trial,  may  be  effected 
by  the  fact,  when  so^established.     The  receipt   by  the  paymaster 

(1)  10  Ves.  128.  (3)  29  Howell'i  State  Trial*,  746— 

(2)  Fairlie  v.  Hastinga.  10  Ves.   128.     763. 
Young    V.    Wright,    1      Campb.     139. 
Wiiion  V.  Tnrner,  1  Taunt.  393. 

(fc)  See  Note  182,  p.  180, 


Sect.  4.]  or  by  his  Agent.  103 

would  in  itself  involve  him  civilly,  but  could  by  no  possibility  con-  Statement  of 
vict  him  of  a  crime."  -  

In  the  course  of  the  late    proceedings   in   the  House  of  Lords, 

on  the   bill  of  Pains   and  Penalties,  a   question    was   proposed  to 

the  judges  as  to  the   competency   of   proving,   on   the  trial  of  a 

criminal   proseciftion,   certain   acts  supposed   to   have   been  done 

by   the  aeent  of  the    prosecutor.     On  that    occasion  the  judges  Acts  by  prose- 
,  •       ,      ,  ,    r      .        ,  1  11  I         11  1  cutor's  agent, 

deternuned,  that  a  delendanl  s  counsel   would   not   be  allowed   to 

prove,  in  the  defence,  that  A.  B.,  who  had  been  employed  as 
agent  to  procure  evidence  in  support  of  the  indictment,  but  who 
had  not  been  examined  as  a  witness,  offered  a  bribe  to  some 
third  person  (who  likewise  had  not  been  examined,)  to  induce 
him  to  give  evidence  fouching  the  subject  matter  of  the  prosecu- 
tion; and,  similar  i)roof,  as  to  the  conduct  of  the  defendant's 
agent,  would  be  equally  inadmissible,  if  offered  on  the  part  of 
the  prosecutor.  (1)  Here,  it  is  to  be  observed,  the  act  of  the 
agent,  wiiich  it  was  proposed  to  prove,  is  supposed  to  have  been 
addressed  to  a  person  not  called  as  a  witness  for  the  prosecution, 
and  to  be  of  a  nature  entirely  unconnected  with  any  particular 
matter  deposed  to  by  other  witnesses;  so  that  those  witnesses 
would  not  be  in  any  manner  affected  by  the  proposed  proof, 
excepting  by  way  of  inference  and  conclusion.  These  circum- 
stances were  particularly  noticed  by  the  Lord  Chief  Justice  in 
delivering  the  opinion  of  the  judges.  The  Lord  Chief  Justice, 
at  the  conclusion  of  his  speech,  after  observing  on  the  abstract 
nature  of  the  question,  added,  "  notwithstanding  the  opinion 
thus  delivered,  lie  was  by  no  means  prepared  to  say,  that  in  no 
case,  and  under  no  circumstances  appearitig  at  a  tiial,  it  might 
not  be  fit  and  proper  for  a  judge  to  allow  proof  of  such  a  nature 
to  be  submitted  to  the  consideration  of  a  jury;  and  the  inclina- 
tion of  Qvery  judge  would  be  to  admit,  rather  than  to  exclude, 
the  offered  proof." 

The  fact  of  the   agency  must  be  first  established,  before   the  Proof  of  agen- 
declarations  of  a  supposed   agent  can   be  received.  (/)     For  this  '^^' 

(1)  See  printed  evidence,  p.  86).  on  a  subject  nearly  connected  wtih  this, 
865.  868.,  2  Brod.  &  Bing.  302.  in  Burnett's  Commentary  on  the  Crimi- 
There  are   some  very    sensible   remarks    nul  Law  of  Scotland,  p.  412 — 419. 


(/)  Sm  Not«  183,  p.  188. 


104  Of  Admissions  by  a  Party  to  the  Suit,      [Ch.  5. 

Statement  of    purpose,  ilie  admissions  of  the  principal  are  evidence  asrainst  him- 

sell;   (m)  or  ilie  lact  may  be  proved  directly  by  the  agent,  (n)     In 

the  case  of  Johnson  v.  Ward  (I),  an  action  on  a  policy  of  in- 
surance, the  affidavit  of  a  pej^son,  stating  that  he  subscribed  the 
policy  on  behalf  of  the  defendant,  (which  affidavit  the  defendant 
himself  had  previously  used,  on  a  motion  to  put  off  the  trial,) 
was,  under  the  particular  circumstances,  properly  admitted  as 
proof  of  the  agency.  The  defendant,  having  used  the  affidavit 
for  such  a  purpose,  must  be  considered  as  having  known  and 
adopted  its  contents.  But  the  single  circumstance,  that  the  affi- 
davit purports  to  have  been  made  by  a  person  as  agent,  would 
not  be  sufficient  proof  of  his  being  invested  with  that  authority. 

Proofofpower.  l^"  ihe  action  is  brought  upon  a  deed,  or  if  a  deed  is  given  in 
evidence  in  support  of  the  defendant's  plea,  and  the  deed  has 
been  executed  under  a  power  of  attorney,  the  power  must  be 
proved;  as,  where  the  defendant,  in  an  action  of  replevin,  made 
cognizance  under  A.  B.  for  rent  in  arrear,  and  a  lease  executed 
by  the  wife  of  A.  B.,  as  attorney  to  her  husband,  was  given  in 
evidence,  Lord  Kenyon  held,  that  she  could  not,  in  the  first 
instance,  be  examined  as  to  the  lease,  without  proof  of  the  power 
of  attorney.  (2)  (o)  But  there  it  might  be  shewn  that  the  husband 
had  admiitedjor  recognized  her  authority,  and  the  validity  of  the 
lease:  and  some  such  evidence  appears  to  have  been  given  in 
that  case. 

General  an-  Proof  that  a   person   has   acted   as  agent   in  other  instances,  in 

thority.  which  the    principal    has    recognised   his  acts,   will  be  sufficient 

evidence  of  a  general  authority;  as,  where  one  had  subscribed 
several  policies,  besides  the  one  in  question,  in  the  defendant's 
name,  which  had  been  afterwards  recognised  by  him.  (3)  So, 
where  the  defendant's  son  had  in  three  or  four  instances  signed 
bills  of  exchange  for  his  father,  this  was  held  to  be  sufficient 
prima  facie  evidence,  in  an  action  upon  a  guarantee  purporting 
to  be^  in  the  father's  name,  of  an  authority  to  the  son  to  sign  the 
guarantee.  (4)   In  the  two  last  cited  cases,  it  must  be   presumed, 

(1)  6  Esp.  N.  P.  C.  48.  (4)  Watkins  v.  Vince,  2  Starkie,  N. 

(2)  Johnson   v.  Mason,  1    Esp  N.  P.     P.  C.  368. 
C.  88. 

(3)  Neale  v.  Erving,  1  Esp.  N.  P.  C. 
61. 


(m)  See  Note  184,  p.  188.     (n)  See  Note  186,  p.  189.     (o)  See  Note  186.  p.  189. 


Sect.  4.]  or  bij  his  Agent.  105 

as   a  very  sensible   writer   has  observed,  (1)  ihat  the   acts  of  the  Admission  bj 

agent  in  such  other  instances,   as  were   given  in   evidence  for  the  ______ 

purpose  of  shewing  a  general  authority,  where  proved  lo  have  been 
recognized  by  the  principal.  Such  previous  proof  appears  to  be  in- 
dispensably necessary;  and,  therefore,  in  the  case  of  Courteen  v. 
Touse,  (2)  where  a  witness  proved  that  he  had  often  seen  the  sup- 
posed agent  sign  policies  for  the  defendant,  but  had  never  seen 
any  general  power  of  attorney  for  that  purpose,  and  was  not  ac- 
quainted with  any  instance  in  which  the  defendant  had  paid  a 
loss  upon  such  a  policy.  Lord  EUenborough  held,  that  this  was  not 
sufficient  proof  of  agency,  (p) 

Proof  by  a  witness,  that  he  has  acted  for  many  years  as  the  BailifT. 
bailiff  of  A.  B.  for  a  certain  manor,  and  during  that  time  made  re- 
turns to  mandates  directed  to  A.  B.  as  lord  of  the  manor,  will  be 
sufficient  evidence  of  his  being  bailiff,  though  he  may  never  have 
seen  A.  B.;  and  the  fact  of  A.  B.  being  lord  of  the  manor  will  be 
proved  by  the  sherifl''s  mandate  to  him  as  such,  toget!)er  with  the 
bailiff's  return.  (3) 

The  attorney  of  one  of  the  parties,  who  has  made  an  admission  Admission  by 
...  ,.  ,  .  ~  •  ,      r  1      attorney. 

With  mtent   to   obviate    the  necessity  ol  provmg  the  lact,  must  be 

supposed  to  have  an  authority  for  that  purpose,  and  his  client  will 
be  bound  by  the  adn^ission;  as,  where  he  has  given  a  formal  ad- 
missions of  a  the  execution  of  deed,  or  of  the  dishonor  of  a  bill;  but 
whatever  the  attorney  may  happen  to  state  in  the  course  of  con- 
versation is  not  evidence  in  the  cause.  (4)  An  undertaking  by  the 
attorney  to  appear  for  the  defendants,  describing  them  as  joint 
owners  of  a  ship,  is  evidence  of  their  joint  ownership;  (5)  and  a 
notice  by  the  defendant's  attorney,  to  produce  papers  relating  lo  a 
bill  of  exchange,  which  describes  the  bill  to  have  been  accepted  by 
the  defendant,  is  evidence  of  his  acceptance.  (6)  Propositions,  inade 
by  an  attorney  on  the  part  of  his  client,  respecting  a  demand  which 

(1)  Paley    on    Principal    and    Agent,  An   admission,    by   tiie   defendant's   at- 
201.  torney,  of   ihe   hand-writing    of   a   per- 

(2)  1    Campb.     43,    n.       Whitehead  son  attesting    a    deed,  is   tantamount  to 
V.  Tucket,  15  Kast,  400.  an    admission    cf  tho    execution   by    thu 

(3)  Tyler    v.    U.    of  Leeds,    2    Star-  defendant.      1  Campb.  375. 

liie,  N.  P.  C.  218.  (5)  Marshall  v.  Cliff,  4  Campb.  133. 

(4)  Young    V.     Wright,    1     Campb.         (6)   Hoit   v.  Squire,    1  Ry.    &.  Moo- 
141.     Millward    v.    Temple,    1    Campb.     dy,  2S2. 

375.  Goldio  v.    ShuUleworth,  1   id.   70. 


(p)  Seo  Nolo  187,  p.  180. 

Vol.  I.  14 


106  Of  Admissions  by  a  Party  to  the  Suit,      [Cfi.  5. 

Admission  by  another  person  had  against  him,  whether  made  before  or  after  the 

under-sberift.  ^  .  ,  ,  .  ,  •     .  .u        i- 

commencement  of  a  suit,  may  be  used  as  evidence  against  the  cn- 

ent.  (1)  These  propositions,  though  they  cannot  be  proved  by  the 
attorney,  from  a  regard  to  the  privilege  of  the  client,  yet  if  proved 
by  another  witness,  are  received  as  the  admission  of  an  accredited 

Proof.  agent.  (2)  And  proof  that  the  propositions  or  admissions  were  made 

by  the  attorney  on  the  record,  will  be  sufficient  to  establish  his 
agency. (3) (q) 

Special  case.  A  special  case  signed  by  the  counsel  on  both  sides,  for  the  opin- 
ion of  the  court  above,  and  stating  facts  proved  at  the  trial  of  the 
cause,  has  been  admitted  as  evidence  of  those  facts  on  a  new  tri- 
al. (4)  Whether  admissions,  made  by  the  defendant's  counsel  on 
a  former  trial,  can  be  received  as  evidence  against  the  client  on  a 
new  trial,  even  supposing  the  client  to  have  been  present  and  with- 
in hearing,  is  a  question  of  some  difficulty.  The  late  Lord  Chief 
Baron  rejected  such  evidence.  (5)(r). 


Statement  of 
under-sheriflT. 


or  bailifi: 


The  declarations  and  statements  of  an  under  sheriff  have  been 
thought  admissible  in  evidence  against  the  sheriff,  on  the  ground 
of  his  being  the  sheriff  's  general  agent.  (6)  But  a  distinction  is 
to  be  made  between  statements  by  an  under  sheriff,  and  statements 
by  a  bailiffor  high  sheriff's  officer.  The  bailiff  is  not  the  sheriff's  ge- 
neral deputy  for  all  official  purposes;  when  a  warrant  is  granted,  he 
becomes  the  special  oflicer  of  the  sheriff.  (7)  The  statements  of  a 
bailiff,  therefore,  are  admissible  as  evidence  against  a  sheriff,  only 
so  far  as  they  form  a  part  of  the  transaction,  in  which  he  represents 
the  sheriff,  and  for  which  the  sheriff  is  responsible.  (8)  In  no  case 
is  the  statement  of  the  sheriff's  officer  admissible,  unless  the  rela- 
tion between  the  officer  and  the  sheriff,  in  the  particular  irnnsac- 
tion,  has  been  clearly  proved  by  other  independent  evidence.  (9)(s) 


(1)  Gainsford      v.       Grammar,       2 
Campb.  9. 

(2)  S.  C,  2  Campb.  9. 

(3)  Marshall  v.  Cliff,  4  Campb.  133. 

(4)  Van    Wort    v.    VVolley,    1    Ry. 
&  Mo.  4,  by  Abbott,  C.  J. 

(5)  Colledge  v.  Horn,  3  Bing.  119. 

(6)  Yabsley  v.   Doble,  1  Ld.    Raym. 
190.     7  Term  Rep.  117. 


(7)  7  T.  R.  117. 

(8)  North  V.  Rliles,  I  Campb.  SS9. 
Bowsher  v.  Caily,  1  Campb.  391. 
'ibis  subject  is  more  fully  treated  of, 
in  the  2d  vol. 

(9)  On  this  .subject,  see  2d  vol.  & 
title  Sheriff  in  the  inde.x. 


{q)  See  Note  188,  p.  190.     (?)  See  Note  1S9,  p.  191.     (j)  See  Note  ISO,  p.  191. 


Sect.  4.]  or  by  his  Agent.  107 

An  acknowledgment  of  a  debt  may  be  frequently  implied  from  Admission, 
the  conduct  and  demeanour  of  a  person,  no  less  than  from  an  ex-  ^  *^' 
press  admission;  and  the  forbearance  and  non-interference  of  one 
party,  with  full  knowledge  of  adverse  acts  done  by  another  party, 
is  a  circumstance  to  shew  l)is  acquiescence.  (1)  An  admission 
may  sometimes  be  inferred  from  what  has  been  said  in  the  pres- 
ence and  hearing  of  a  person  without  his  opposing  or  contradict- 
ins-  (0 

The  force  and  effect  of  an  admission  must  of  course  depend  upon  Effect, 
the  circumstances  under  which  it  has  been  made.  In  many  cases 
it  will  be  evidence  of  the  strongest  kind,  if  clearly  proved:  in 
some,  it  amounts  to  little.  A  full  and  free  admission  of  a  debt  is, 
unless  satisfactorily  explained,  conclusive  against  the  party  who 
makes  it. 

Proof,  that  a  defendant,  in  his  examination  before  commissioners  Proving  nnder 
r  I      .1  1  1  I  •      I   I  II  ...  .    commission, 

oi  bankrupt,  has  proved  his  debt  under  the  commission,  is  not  evi- 
dence against  him  of  such  a  petitioning  creditor's  debt,  as  will  sup-  ^' 
port  the  commission;  much  less  is  it  evidence  against  a  co-defend- 
ant, in  an  action  by  the  assignees.  (2)  The  creditors  have  not  the 
means  of  knowing  the  evidence,  on  which  the  party  was  declared 
bankrupt;  and  it  would  not  be  reasonable,  that  by  proving  their 
debts  they  should  be  put  to  the  dilemma  of  being  barred  by  a  cer- 
tificate, or  of  being  understood  to  have  admitted,  that  every  act  ne- 
cessary to  support  the  commission  really  existed,  when  they  had 
not  the  means  of  judging,  whether  such  acts  did  or  did  not 
exist.  (3)  (u) 

An   admission   by  the   defendant,  that  he  owes   a   certain  sum  Admission  of 
of  money  to   the   plaintiff',  is  strong   evidence  against  him,  in  an 
action  to   recover  the  debt,  but  it  will   not   be  conclusive:  (v)  the 
defendant,  if  he  can,  may    prove  the  fact  of  payment,  or  shew  a 
receipt,  or  give  other  evidence  to  repel    the  presumption  arising 

(1)    See     the     following     examples:  Doe  dem.  Winkley  v.  Pye,  I  Esp.  N.  P* 

Jairett   v.  Leonard,    2  Maule.  &  Selw.  C.  364. 

265.      Morris     v.    Burdctt,    1     Campb.         (2)  Rankin   r.    Horner  and  Lauday, 

2IS.     Doe     dem.    Sheppart    v.    Allen,  16  East,  191. 

3     Taunt.     78.     Maitny    v.     Christie,         (3)   Rankin  v.  Horner   and  Laaday, 

I  Esp.   N.  P.  C.  341,  cit.  16  East,  193.  16  East.  192. 

Xt)  See  Note  191,  p.  191.     (u)  See  Note  192,  p.  193.     {v)  See  Note  193,  p.  21S. 


108 


OJ  Admissions  by  a  Party  to  the  Suit,      [Ch.  5. 


Effect  of  r.d 


Receipt. 


from  liis  acknowledgment.  A  receipt  for  money  is  not  conclusive 
against  the  person  who  has  signed  it;  hut  he  may  shew,  if  he  can, 
that  tlie  money  has  not  been  received,  (1)  or  that  he  gave  the  re- 
ceipt under  a  tnisrepresentaiion.  An  indorsenient  on  a  deed,  (2) 
of  a  receipt  of  a  sum  of  money,  is  not  conclusive,  the  deed  itself  in 
its  contents  not  stating  such  receipt:  and  it  may  be  shewn  that  in 
fact  the  money  was  not  paid;  the  indorsement,  not  being  under 
seal,  cannot  amount  to  an  estoppel,  but  can  only  be  evidence  for 
the  jury,  capable  of  being  rebutted  by  other  circumstances  in  the 
Attorney'g  bill  case.  (-3)  (it)  A  bill  delivered  in'  an  attorney  to  his  client,  for  bu- 
siness done  during  a  certain  period,  is  strong  presumptive  evidence 
against  any  additional  item  within  the  same  period;  but  the  bill  is 
not  like  a  deed  to  operate  as  an  estoppel,  and  the  party  will  be  at 
liberty  to  prove  the  fact  of  his  having  transacted  other  business  for 
the  defendant.  (4)  (x) 


Notice  to  quit 
not  objected 
to. 


A  notice  to  quit  at  a  certain  time  is  evidence,  that  the  tenancy 
commenced  at  that  period,  if  the  notice  was  served  personally  on 
the  tenant,  and  if  he  made  no  objection  to  the  time  of  quilting  men- 
tioned in  the  notice.  (5)  The  circumstance  of  his  not  making 
such  an  objeclion  has  been  considered  as  prima  facie  evidence  of  an 
admission  and  acquiescence.  If,  on  the  other  hand,  it  should  be 
made  to  appear,  that  at  the  time  of  the  service  the  tenant  did  not 
look  at  the  notice  so  as  to  know  its  contents,  or  could  not  read, 
such  evidence  v.ould  completely  repel  the  supposition  of  any  ac- 
quiescence on  the  part  of  the  tenant;  for  he  cannot  be  supposed  to 
admit  a  fact,  of  which  he  does  not  appear  to  have  been  inform- 
ed. (6) 


Offer  by  way  j^^^  offer  by  a  party,  to  pay  money  by  way  of  compromise, 
and  to  get  rid  of  an  action,  is  not  evidence  of  a  debt,  as  an  ad- 
mission. (7)  Where  a  party  submits  to  make  a  sacrifice,  with  the 
view  of  buying  peace,  it  would   be  unjust  to  construe  such  a  con- 

(1)  Stratlon  V.  Rasteli,  2   T.  R.  366.  13    East,   405.     Doe    dein.    Leicester  v. 

(2)  Skaife    v.    Jackson,    3    Barn.    &  Biggs,  2  Taunt.  109,  Doe  dem.  Baker  v. 
Cress.  421.  Woombwell,  2    Cainpb.    559.     Thomas 

(3)  Larnpon   v.    Corke,    5    Barn.    &  deni.  Jones  v.  Thomas,  2  Campb.  647. 
Aid.  606,  611.  (6)  Thomas   v.    Thomas,    2   Campb. 

(4)  Loveridge  v.    Botham,  1    Bos.  &  647. 

Pull.  49.  (7)  Bull.    N.  P.  [236.]     Gregory   v. 

(5)  Doe     dem.    Clarges    v.    Foster,     Howard,  3  Esp.  N.  P.  C.  113. 


(i»)  See  Note  194,  p.  213.     (x)  See  Note  195,  p.  218. 


Sect.  4.]  or  by  his  Agent.  103 

cession  into  an  unequivocal  acknowledgment  of  the  adverse 
party's  right.  "  If  A.  sue  B.  for  100/.,  and  B.  offer  to  pay  him 
20/.,  it  shall  not  be  received  in  evidence;  for  this  neither  admits 
nor  ascertains  any  debt,  and  is  no  more  than  saying,  he  would 
give  20/.  to  get  rid  of  the  action.  But  if  an  account  consists  of 
ten  articles,  and  B.  admits  that  a  particular  one  is  due,  it  is 
good  evidence  for  so  much."  (!)(?/) 

Admissions  of  particular   articles   before   an  arbitrator  are  also  Admissions 
evidence  under  the  same  limitation,  that   is,  when  they   are  made,  {'0,.°'°""^ 
not  with  a  view  to  a  compromise,  but  while  the  parties  are  contest- 
ing their  rights;  (2)  (z)  and  these  admissions   may   be  proved    by 
the  arbitrator  himself.  (3) 

The  rule  now  under  consideration,  applies  only  to  treaties  for 
the  amicable  adjustment  of  disputes,  which  are  not  afterwards 
concluded.  (4)  It  cannot  be  applied  to  a  case,  where  a  treaty  A»reement. 
has  been  reduced  to  a  final  agreement,  signed  by  the  parlies, 
and  executed:  such  an  agreement,  though  purporting  to  be  a 
compromise,  will  be  admissible  in  evidence  against  the  party  who 
signs  it.  (4)  (a) 

A  distinction  also  is  to  be  made,  on  this  subject,  between  an  Limitation  of 
admission  of  some  fact  connected  with  the  merits  of  the  cause,  '"°''^" 
and  an  admission  of  an  indifferent  fact,  as  of  the  hand-writing  of 
a  party.  Thus,  on  the  trial  of  an  action,  which  bad  been  once 
withdrawn  under  a  treaty  between  the  parties.  Lord  Kenyon 
allowed  proof  of  the  defendant's  having  admitted  of  his  acceptance 
on  a  bill  of  exchange,  though  the  admission  bad  been  made 
during  the  treaty;  (5)  he  held  that  any  admission  by  the  party, 
respecting  the  subject  matter  of  the  action,  pending  a  treaty  on 
the  faith  of  which  it  was  made,  could  not  be  received  to  his 
prejudice;  but  added,  that  such  a  fact  as  that  of  the  party's 
hand-writing,  not  being  connected  with  the  merits  of  the  cause, 
and  capable  of  being  easily  proved,  stood  on  different  grounds, 
and  that  an  admission  of  this  fact  might  be  received. 

(1)  Ball.  N.  P.  [236.]  (4)    Froysell    r.   Dewelyn,  9    Price. 

(2)  Bull.  N.  P.  ib.   I    P.    Wms.  487,      122,  128. 

Black  V.  Buchanan,  Peake,  N.  P.  C.  5.  (5)  VValdiidge  v  .    Kennison,  1    Esp. 

(3)  Gregory   v.    Howard,  3   Esp.  N.     N.  P.  C.  143. 
p.  C.  113. 


(y)  See  Note  196,  p.  218.     (z)  Sea  Note  197,  p.  223.     (a)  See  Note  198,  p.  223. 


110 


Of  Confessions  by  Prisoners.  [Ch.  5. 


Whole  of  ad- 
mission to- 
gether. 


Voluntjsry 
coafesaion 


It  Is  scarcely  necessary  to  observe,  that  the  whole  of  an 
admission  must  be  taken  t02;ether,  in  order  to  show  distinctly 
the  full  meaning  and  sense  of  the  parly.  *  Thus,  if  a  person,  in 
making  an  admission  against  his  own  interest,  refers  to  a  written 
paper,  without  which  the  admission  is  not  complete,  the  con- 
tents of  the  paper  ought  to  be  shown,  before  the  statement  can 
be  used  as  evidence  against  the  party.  (1)  (6)  Or,  if  a  person  says, 
"that  he  did  owe  a  debt,  but  that  he  had  paid  it,"  such  an 
admission  would  not  be  received  as  evidence  to  prove  the  debt, 
without  being  also  evidence  of  the  payment.  (2)  (c)  What  he  has 
said  in  his  own  ftivour  may  perhaps  weigh  very  little  with  the 
jury,  while  his  admission  against  himself  may  be  conclusive; 
however,  it  is  reasonable,  that  if  any  part  of  his  statement  is 
admitted  in  evidence,  the  whole  should  be  admitted,  (c/) 

Sect.  V. 

Of  the  Mmissibility  of  the  Confession  of  a  Prisoner  against 

himself. 

Since  an  admission  is  evidence  against  a  party  in  civil  suits, 
with  much  stronger  reason  is  the  voluntary  confession  of  a 
prisoner  evidence  against  him  on  a  criminal  prosecution:  for  it 
is  not  to  be  conceived,  that  a  man  would  be  induced  to  make  a 
free  and  voluntary  confession  of  guilt,  so  contrary  to  the  feelings 
and  principles  of  human  nature,  if  the  facts  confessed  were  not 
General  rule.  true.  Tiie  general  rule  on  this  subject  was  very  fully  considered 
in  a  judgment  delivered  by  iNIr.  Justice  Grose,  on  a  case  re- 
served for  the  opinion  of  the  twelve  judges;  and  it  seems  to  be 
now  clearly  established,  that  a  free  and  voluntary  confession  by 
a  person  accused  of  an  offence,  whether  made  before  his  appre- 
hension or  after,  whether  on  a  judicial  examination  or  after 
commitment,  whether  reduced  into  writing  or  not,  in  short,  that 
any  voluntary  confession,  niade  by  a  prisoner  to  any  person  at 
any  time  or  place,  is  strong  evidence   against  him.  (3)  (e)      Such 

(1)  See  Jacoli  v.  Lindsay,  1  East,  Abr.  tit.  Ev.  A.  b.  23.  Green  v.  Dunn, 
462.  Smilii  v.  Young,  1  Campb.  439.  3  Carnpb.  215.  Smith  v.  Young,  1 
Lord  Barrymore  v.  Taylor,  1  Esp.  Campb.  439.  Smith  v.  Blandy,  1  Ry. 
N.    P.    C.  325.     Colieit   v.    Ld,    Keith.  &  Mo.  258. 

4  Esp.  N.    P.  C.  212.  Rondie  v.  Black-         (3)  Lamb's   case,    2   Leach,    Cr.    C. 

burn,     5    Taunt.      245.     Boardman    v.  625.     Hawk.  P.  C.    b.  2,  c.    46,   s.   8L 

Jackson,  2  Ball  and  Beatty,  386.  Thomas's  case,  2   Leach,   728.    Hule'i 

(2)  Anonym,     case,    cited    12    Vin.  case,  East.  T.  1790,  MS. 


•  See  Note  190,  p.  223.      (6)  See  Note  200,  p.  228.     <c)  See  Note  201,  p.  224. 
(d)  See  Note  202,  p.  230.     (e)  See  Note  203,  p.  232. 


Sect.  5.]         Of  Confessions  by  Prisoners.  1  1 1 

confession    is  sufficient   eround   for   a  conviction,  if  it  was  made  Confession 

,  alone, 

before  a  magistrate   under  a   charge  of  the  offence,  although  there 

is  no  other  proof  of  his  having  committed   the  offence,   or  of  the 

offence  having  been  committed.  (1)  (/) 

The  confession  must  be  vohmtary,  not  obtained  by  improper  Voluntary, 
influence,  nor  drawn  from  the  prisoner  by  means  of  a  threat  or 
promise:  for  however  slight  the  promise  or  threat  may  have 
been,  a  confession,  so  obtained,  cannot  be  received  in  evi- 
dence, (2)  (g")  on  account  of  the  uncertainty  and  doubt,  whether 
the  prisoner  might  not  have  been  induced,  from  motives  of  fear  or 
of  interest,  to  make  an  untrue  statement,  (/i)  And  if  a  confes- 
sion has  been  obtained  from  the  prisoner  by  undue  means,  any 
statement,  afterwards  made  by  him  under  the  influence  of  that 
confession,  cannot  be  admitted  in  evidence.   (3)(i) 

It  is   not   an  objection   to  the    admissibility  of    a   confession,  Stranger  in- 
ihat  it    was   made  by   the   prisoner  after   an    admonition   from   a  ° 

stranger,  that  he  ought  to  tell  the  truth,  although  the  admonition 
was  in  the  presence  of  a  constable,  to  whom  the  confession  was 
afterwards  made.  (4)  In  another  case,  where  the  counsel  for  the 
prisoner  objected  to  the  admissibility  of  a  confession  made  before 
the  conmiitting  magistrate,  and  offered  to  prove,  that  the  wife  of 
the  constable  had  told  the  prisoner,  some  days  before  the  commit-  ^ 

ment,  that  it  would  be  better  for  him  to  confess,  Mr.  Baron  Wood 
ever-ruled  the  objection,  and  admitted  the  confession.  (5)  (J) 

It  is   not  an   objection,   that 'the   confession   was  made   under  a  Under  mia- 
mistaken   supposition,   that   some   of    the   prisoner's   accomplices  *"'^®' 
were  in   custody;  not  even   though  some   artifice   has   been  used 
to  draw  him  into  that  supposition.  (6)(fc)     Nor  is  it  ar)y  objection 
to  a  confession,   made  before  a  magistrate,   that   the  prosecutor, 

(1)  Kelyng,    18.       VVheeling'.s    case,  case,  2    East,  P.    C    56?.    Jone's   case, 
l^Leach,  C'r.    C.  349,  n.  (a)   Eldridge's  Russ.  &.    Ry.  Cr.  C.    152.  See   Thorn- 
CISC,  Russ.  &    Ry.  Cr.    C    440.     Fulk-  ton's  case,  1  Ry.  &  Mo.  Cr.  C.  27 . 
ner=s  case,    ib.    348.     White's   case,  ib.  (3)  R.  v.  White,  Mitch.  T.   1800,  MS. 
508.     TipeU'scase,  ib.  509.  (4)    R.  v.  Row,    East.  T.  IS09,   MS. 

(2)  Thompson's   case,  1    Leach,    Cr.  Russ.  &  Ry.  Cr.  C    1G3. 

C.    827.    Cuss's    case,  n.  (a),   ib.    328.         (5)    R.     v.     Kardwick,   Nottingham 

Warwickshall's   case,  1    Leach,  Cr.    C.     Lent  Ass.  1811. 

299.     2  Leach,  636.,   note  in   Lambe's         (6)  R.  v.  Burlcy,   East  T.  1818,  MS. 


(/)  Fee  Note  204,  p.  234.     (j-)  See  Note  205,   p.  235.     (A)  See  Note  206,  p. 
235.  (i)  See  Note  207,  p.  240.  (y)  See  Note  208,  p.  241.  (ft)  See  Note  209,  p.  241. 


112  Of  Confessions  by  Prisoners.  [Ch.  5* 

Caution  by  who  was  present,  first  desired  the  prisoner  to  speak  the  truth,  and 
suggested  that  he  had  heller  speak  out:  on  which,  the  magistrate 
or  liis  clerk  immediately  checked  the  prosecutor,  desiring  the  pris- 
oner not  to  regard  him,  hut  i,ay  what  he  thought  proper.  (l)(0 

Promises  aniel       Voluntary   confessions  before    magistrates   have   been  in   some 

cedent  to  coi:-  i  •  i  c  •  c  r  i       • 

feision  before  cases  objected  to,  on  account  of  some  promise  of  favor  havmg 
a  magistrate,  jjggj^  made  to  the  prisoner  before  he  was  taken  into  the  presence 
of  the  magistrate.  In  a  case  of  this  kind,  mentioned  by  Mr. 
East,  (2)  where  hopes  of  favour  had  been  given,  and  the  prisoner 
refused  before  the  magistrate  to  confess  except  upon  conditions, 
Mr.  Justice  Duller  observed,  that  there  must  be  very  strong  evi- 
dence of  an  explicit  warning  by  the  magistrate  not  to  rely  on  any 
expected  favor  on  that  account,  and  it  ought  most  clearly  to  ap- 
pear, that  the  prisoner  thoroughly  understood  such  warning,  be- 
fore his  subsequent  confession  could  be  given  in  evidence.  In  an- 
other case,  tried  before  Mr.  Justice  Baily,  (3)  where  it  appeared 
that  the  prisoner,  on  being  taken  into  custody,  had  been  told  by  a 
person  who  came  to  assist  the  constable,  that  it  would  be  belter  for 
him  to  confess,  but  that  on  his  being  examined  before  the  commit- 
ting magistrate  on  the  following  day,  he  was  frequently  caution- 
ed by  the  magistrate  to  say  nothing  against  himself,  a  confession 
under  these  circimistances  before  the  magistrate  was  held  to  be 
clearly  admissible. 

In  a  still  later  case,  it  appeared  that  a  constable  told  the 
prisoner  he  might  do  himself  some  good  by  confessing ;  the 
prisoner  afterwards  asked  the  magistrate,  if  it  would  be  any 
benefit  to  him  to  confess;  on  which  the  magistrate  said,  he  could 
not  say  it  would,  and  the  prisoner  then  declined  confessing;  but 
afterwards,  in  his  way  to  prison,  he  made  a  confession  to  another 
constable,  and  he  confessed  again  in  prison  to  another  magistrate; 
the  judges  were  unanimous  in  holding,  that  the  confessions  were 
admissible  in  evidence,  on  the  ground  that  the  magistrate's  an- 
swer was  sufficient  to  efface  any  expectation  which  the  constable 
might  have  raised.  (4)(ni) 

(1)  R.  V.Edwards,  East.  T.  t502.  MS.         (4)  R.    v.    Rosier,    East.    T-     1821 

(2)  2  East,  P.  C.  658.  MS. 

(3)  R.  V.    Lingate,  Derby  Lent  Ass. 
1815.  , 

(/)  S«e  Note  210,  p.  241.     {m)  Sea  Note  211,  p.  242. 


Sect.  5.]         Of  Confessions  by  Prisoners.  113 

The  effect  of  an  antecedent  promise  of  fiivour,  in  rendering  a 
confession  before  a  magistrate  inadmissible,  must  depend  npon  the 
nature  of  the  promise,  the  time  and  circumstances  in  which  it  vvas 
made,  and  on  the  situation  of  the  person  from  wliom  the  promise 
came.  A  promise  held  out  by  the  prosecutor,  recently  before  the 
examination,  or  by  the  constable  who  had  the  jjiisoner  in  custody, 
may  be  suj)posed  to  have  great  influence.  On  the  other  hand,  a 
promise  made  some  time  before,  by  some  indifferent  person,  who  in- 
terfered officiously  without  any  kind  of  authority,  and  promised 
without  the  means  of  performance,  can  scarcely  be  deemed  sufli- 
cient  to  produce  any  effect,  even  on  the  weakest  mind,  as  an  in- 
ducement to  confess,  (n) 

Parol  evidence  of  the  prisoner's   statement  before  a   magistrate  f**''''"'  ®^''- 

...  dence. 

ought  not  to  be  received,  until  it  is  clearly  shown,  that  the  state- 
ment has  not  been  reduced  into  writing;  (1)  (o)  for  the  statute, 
after  directing  the  magistrate  to  take  the  examination  of  the  pris- 
oner, expressly  enjoins  him  to  put  it  in  writing.  (2)  ('>)  The  pro-  Mode  of  tak- 
priety  of  committing  the  examination  to  writing,  instead  of  leav-  ti^a!^*^"""'^' 
ing  it  to  the  uncertain  memory  of  surrounding  witnesses,  cannot  be 
too  strongly  impressed  on  all  who  are  entrusted  with  such  judicial 
powers.  It  is  also  of  the  utmost  importance,  that  the  confession 
should  be  committed  to  writing  with  the  most  scrupulous  atten- 
tion, and,  as  nearly  as  can  be  done,  in  the  very  words  of  the 
prisoner,  {q) 

The  informations   against   the   prisoner  before  a  magistrate   are  Not  on  oath, 
to  be  taken  on  oath;  the  account  given    by  the   prisoner  ought  to 
be  taken  without  oath,  [o)  (r)      If  the   prisoner  has   been  sworn, 
his  statement  cannot   be  received;  and  if  the  written  deposition  of 
a  prisoner  purports  to  have   been   taken  on  oath,  evidence  is   not 


(1)  Jacob's   case,   1    Lench,    Cr.    C.  was  a  similar  regulation. 

348.     Fearsliire'3  case,  ib.  240.  (3)   Bull.    N.    P.  242.     Hawk.    P.  C. 

(2)  St.    7    G.    4.    c.    64.    s.  2.     This  b.  2.  c.  46    s.  27.     Keiyng,    2.  7    G.  4. 
statute  repeals  1  &  2  P.  &  M.  c    13.  and  c   C4.  s.  2. 

2  &  3  P.  &  M.  c     10.     lu   which   (here 


(n)  See  Note  212,  p.  242.     (o)  See  Note   213,  p.  243.     (  p)  See  Not«  214,  p. 
244.     (5)  See  Note  215  p.  244.     (r)  See  Note  216.  p.  244. 

Vol.   I.  15 


114  Of  Confessions  by  Prisoners.         [Ch.    5. 

admissible  for  the  purpose  of  showing,  that  in  point  of  fact  he  was 
not  sworn.  (I) 

Examination         The  justice  before  he  commits  to  prison  any  person  arrested  for 
^  '        felony,  or  on  suspicion  of  felony,  (s)  is  directed  to  take  the  exami- 

nation of  such  person^  and  the  information  upon  oath  of  those  who 
shall  know  the  facts  and  circumstances  of  the  case,  and  to  put  the 
same,  or  as  much  thereof  as  is  material,  into  writing.  He  is  further 
directed  to  subscribe  all  such  examinations  and  informations.  (2) 
(f)  The  words  in  the  act,  respecting  the  taking  of  the  examina- 
tion, imply  an  authority  given  lo  examine  the  prisoner,  and,  there- 
fore, to  put  questions  (for  without  questions  no  examination  can  be 
carried  on)  as  to  the  facts  proved  against  him.  And  now,  the  bet- 
ter opinion  appears  to  be,  that  an  examination,  so  taken,  is  not  to 
be  rejected  on  the  ground  that  the  prisoner  had  been  previous- 
ly questioned  by  the  justice.  (3)  (it)  But  though  this  is  the  rule  of 
law  according  to  the  strict  letter  of  the  statute,  yet  the  most  hu- 
mane, the  safest,  and  best  course  to  be  generally  adopted  by  jus- 
tices, is,  not  to  press  the  accused  with  questions,  but  to  leave  hira 
at  liberty  to  speak  or  not  in  his  defence,  as  he  tnay  think  fit.* 

Signing.  rpj^g  examination  of  the   prisoner,  when   reduced   into   writing, 

ought  to  be  read   over  to  him,  and  tendered   to   him   for   his  sig- 

(1)    R.    V.    Smith    and    Hornnge,     1  contempt,  and    could    not    therefore   be 

Starkie,  N.  P.  C.  242.,  by    Le    Blanc  J.  considered  voluntary;  bat   the    objection 

In  the  case  of  R.   v.   Merceron,    2    Star-  was  overruled,  and  the  evidence   receiv- 

kie,  N.  P.  C.  366.,  a   statement    by   the  ed. 

defendant    before    a    committee    of  the  (2)   7  G.  4.  c.  64.  s.  2. 

House  of  Common.s  was  offered    in    ev-  (3)  Ellis"  case   A.    D.    1826,   before 

jdence;    an   objection    was    made,     that  Liltledale  J.    1    Ry.   Mo.    425.,    and    a 

the   statement   had     been    made    under  case  there  cited,  before  Holro\d  J.  R.  v. 

a    compulsory   process,    and    under    the  Wilson,  before  Richards    C.    B.    contra, 

pain  of  incurring   punishment   as   for   a  Holt,  N.  P.  C.  597. 

♦  The  at.  2  &  3  P.  &  M.  c.  10,  also  under  which  justices  used  to  act  till  the 
late  Stat,  of  7  G.  4.  c.  64.  passed,  required  justices  to  lake  (he  examinations  of  pris- 
oners. Lambard,  a  writer  in  the  reign  of  Elizabeth,  in  noticing  the  statute  of  P.  & 
M.  writes  thus:  "  There  also  you  may  see,  if  I  :iin  not  deceived,  the  time  when  the 
examination  of  the  felon  himself  was  first  warranted  by  our  law,  lor  at  ike  com- 
mon law,  his  fault  vas  not  to  be  wrung  out  of  himself ,  but  rather  to  be  proved  l>y 
ethers."  Eirenarcha,  cap.  21.  p.  208  "See  also  Dalton  Just.  chap.  164  p.  544..  and 
Cr.  mp.  193  The  passage,  above  cit«rd  from  Lan.bard,  shows  ln>w  the  law  was  then 
nndefiitood,  though  it  also  proves  that  the  power,  given  by  the  statute,  was  exercised 
with  great  harshness. 


(ff)SeeNot©2J7»p.  246.    CO  Se«  Note  218,  p.  245.     (tt)  See  Note  219,  p  246. 


Sect.  5.]  Of  Conftssions  by  Prisoners.  116 

nature;  it  ought  to  be  subscribed  also  by  the  magistrate.  (!)(?') 
The  signature,  however,  of  the  prisoner  is  not  essentially  "necessa- 
ry; but  only  for  precaution,  and  for  the  facility  of  future  proof. 
In  Lambe's  case  (2),  before  mentioned,  the  question  for  the  opin- 
ion of  the  judges  was,  whether  a  written  examination,  taken  by  a 
committing  magistrate,  and  containing  a  confession,  which  the 
prisoner,  on  hearing  it  read  over  to  him,  admitted  to  be  true,  but  re- 
fused to  sign,  ought  to  have  been  received  in  evidence,  as  it  was 
not  signed  by  the  magistrate  (3)  or  by  the  prisoner;  and  a  major- 
ity of  the  judges  held,  that  such  a  confession  would  have  been  ev- 
idence at  common  law,  and  that  it  is  not  rendered  inadmissible  by 
any  provision  in  the  stattites  of  Philip  and  Mary  respecting  exami- 
nations and  informations  before  justices  of  the  peace.  In  this  case 
the  examinalion  was  rendered  admissible  by  the  prisoner's  ac- 
knowledging the  truth  of  its  contents:  if  he  had  not  made  such  an 
admission,  but  had  only  refused  to  sign  it,  after  it  had  been  read 
over  to  him,  it  could  not  have  been  received  in  evidence.  (4)  {to) 

Minutes   of  the   prisoner's   examination,    which  have  not  been  Unsigned 
,    ,        ,  .  ,  ,  .         ~  ,  ,         .     memorandum. 

Signed   by    him,  nor   read   over   to   Iimi  alter  they   were  taken  m 

vvrillng,  though  they  cannot  be  admitted  in  evidence  as  a  judicial 

examinalion,   may  yet  be   used   by   a   witness,  who  was   present 

when  the  minutes   were  made,    as  a   memorandum   to   refresh  his 

memory.  (5)  (x) 

The  confession  is  evidence  only  against  the  person  confessing,  Evidence  only 
not  against  others,  although   they  are  proved    to  be  his  accompli-  pffso"ner  ^^ 
ces.     It  was   resolved  by   all   the  judges   in  the   case    of  Tong 
and   others  (6),  on  an   indictment    for  high   treason,    that  a   con- 
fession by   one  of  the   prisoners   was  evidence    only   against   the 

(1)  7  G.  4.  c.  64.,  s.  2.  This  stat.  (6)  Kelyng,  18.,  res.  5.  Gilb.  Ev. 
requires  the  commiuing  justices  to  124.  Many  instances  are  to  be  found 
subscribe  the  e.xaminations  and  in-  among  the  earlier  state  trials,  of  con- 
formations: which  was  not  required  fessions,  even  of  convicts,  being  used 
by  the  st.  of  P.  &  M.  as    evide.ico    against    prisoners    charged 

(2)  2  Leach.  Cr.  C.  625.  Thomas's  with  tlie  same  offence.  This  was 
case,  ib.  727.  S.  P.  done    in    Sir    Nicholas     Throcismorton's 

(3)  See  Note  (I).  case,  and  in    the    trials  for    the    murder 

(4)  R.  V.  Telicole,  3  Starkie,  N.  P.  of  Sir  Thomas  Overbury.  It  appears 
C.  483.  to    have  been   the  general   practice,    in 

(5)  Layer's  case,  16  Howell,  St.  those  limes,  to  receive  confessions  as 
Tr.  214.  proof  against  third  persons. 


(u)  See  Note  220,  p  246.     (w)  See  Note  221,  p.  246.     (jc)  See  Note  222,  p.  246. 


116  Of  Confessions  by  Prisoners.  [Ch.  5. 

part}' himself  who  made  the  confession,  and  could  not  be  made 
use  of  as  evidence  against  any  others,  whom  on  liis  examinaiion 
he  confessed  to  be  in  the  treason.  And  if  one  in  his  examination 
before  tlie  justice,  implicate  another  who  is  present,  and,  tliough 
charged  with  the  offence,  does  not  deny  it,  yet  this  is  not  to  be  us 
ed  against  him  as  an  admission  or  confession.  (1)  (y) 

If  the  confession  is  not  in  writing,  liie  whole  of  what  the  prison- 
er said  must  be  fully  stated,  aliliough  it  may  happen  that  some 
part  of  it  concerns  other  piisoners  who  are  tried  on  the  same  indict- 
ment. In  sucli  a  case  it  is  not  possible  to  n)ake  any  selection;  for 
until  the  evidence  has  been  heard,  it  cannot  be  known  what  it  is, 
or  to  whom  it  i elates;  and  all  that  can  be  done  is  to  direct  the 
jury  not  to  take  into  their  consideration  such  parts  as  affect  the 
other  prisoners.  But,  in  the  case  of  a  written  confession,  a  dis- 
tinction is  commonly  made  in  this  respect,  when  that  part  relating 
to  the  other  prisoners  is  capable  of  being  separated  and  detached 
from  the  rest,  or  can  be  so  read  as  not  to  affect  in  any  degree  the 
'    prisoner's  narrative  against  himself.  (2) 

Discoveries  in  It  has  been  determined  by  the  opinion  of  all  the  judges,  that 
of'confessio^ns.  alil^ough  confessions,  improperly  obtained,  are  not  admissible, 
yet  that  iiny  |_facts,  which  have  been  brought  to  light  in  con- 
sequence of  such  confessions,  may  be  properly  received  in  evi- 
dence. Thus  where  a  prisoner  was  charged,  as  accessary  after 
the  fact,  with  having  received  property  knowing  it  to  be  stolen, 
proof  was  admitted  of  the  property  being  found  concealed  in  the 
prisoner's  lodgings,  although  the  knowledge  of  that  fact  had 
been  gained  from  an  inadmissible  confession.  (2)  (a)  And  on  a 
prosecution  for  receiving  stolen  goods,  evidence  has  been  ad- 
ii)itted,  that  the  prisoner  described  the  place  where  the  goods 
were  concealed,  and  that  afterv.ards  they  had  been  found  there;  (6) 
but  that  part  of  the  confession,  in  which  he  acknowledged  that 
he  himself  had  concealed  them,  was  rejected,  as  it  was  im- 
properly drawn  from  him.  (.3)  (c)      And  that  part  also  of  his  con- 

(1)   R.  V.   Appleby,  3  Stiirkie,  N.  P.  SOI.     Lockhart's  cnse,   ib.  430,  2  East, 

C.  33.    by  Hoirojd  J.    &    S.  P.  said   by  P.  C.  C5S,  S.  C. 

birn  to    liave    been   so   ruled   by  several  (3)    Gram's   case,  and   Hodge's  case, 

judges  in  an  earlier  case.  2  East,    P.    C.    658.     i  Leach,  Cr.    C. 

(2J  Warwickcliali's    case,    I    Leacb,  301,  n.  {a),  S.  C.     Gridin's  case,  Kuss. 

Cr.  C.    300.     Mosey's  case,    ib.   n.  (a)  lly.  Ca.  C.  151. 


(y)  See  Note  223.  p.  246.     (z)  See  Note  224,  p.  247.     (a)  See  Note  225,  p.  24». 
(6)  See  Note  226,  p.  249.     (c)  Sse  Note  227,  p.  250. 


Sect.  6.]       Of  Confessions  by  Prisoners.  117 

fessions  in  which  he  has  described  a  particular  spot  as  the  place 
where  the  goods  were  concealed  or  deposited,  would  be  inadmis- 
sible, unless  confirmed  afterwards  by  the  proof  of  finding  them 
there.  (1)  (^d)  Tliere  is  good  reason  for  this  distinction;  for, 
what  the  prisoner  has  said  respecting  the  concealment  of  the  prop- 
erty, is  ascertained  to  be  true  by  the  fact  of  the  subsequent  discov- 
ery, but  the  other  part  of  the  confession,  in  which  he  charges  him- 
self with  having  concealed  it,  may  have  been  made  untruly  and 
under  the  influence  of  the  threat  or  promise. 

The  Stat,  of  the  7th  W.  3.   c.  3.  s.  2.  enacts,  "that  no  person  Confession  in 

shall  be  indicted,    tried,    or   attainted,   for  high  treason,    or   niis- *^'''^'*  "'^  ""*"' 

.  son. 

prision  of  high  treason,  but    upon  the  oaths  and    testimony  of  two 

witnesses,  either  both  of  them  to  the  same  overt  act,  or  one  of 
them  to  one,  and  the  other  of  them  to  another  overt  act  of  the 
same  treason,  unless  the  party  indicted  and  arraigned  shall  wil- 
lingly without  violence  in  open  court  confess  the  same."  Mr. 
Justice  Foster  seems  to  have  been  of  opitnon  (2),  that  the  legis- 
lature intended  by  this  section  to  reqin're  two  witnesses  to  the 
overt  acts  in  all  cases,  except  wliere  the  prisoner  confessed  the 
treason  upon  his  arraignment  in  open  court,  and  that  to  warrant 
a  conviction  there  must  be  proof  of  the  overt  acts  upon  oath,  not 
merely  proof  of  the  confession  of  the  overt  acts.  "  But,"  he 
adds  (3),  "  perhaps  it  may  now  be  too  late  to  controvert  the 
authority  of  the  opinion  in  1716,  in  Francia's  case,  warranted  as 
it  hath  been  by  later  precedents."  (4)  The  rule  is  now  clearly 
settled.  All  the  judges,  on  a  conference  preparatory  to  the  trial 
of  Francia  (5),  held  that  a  confession  of  the  overt  acts,  if  proved 
by  two  witnesses,  is  proper  evidence  to  be  left  to  a  jury.  The 
same  construction  of  the  statute  was  adopted  in  Greg's  case  (6), 
by  six  judges  against  two:  in  Berwick's  case  (7),  by  Ld.  C.  J. 
Willes  and  Sir  Thomas  Abney  against  the  opinion  of  Mr.  Justice 

(1)  Jenkins'    case,    Russ.    Ry.    Cr.         (3)  Fost.  Disc.  243. 

C.  492.  (4)  See  Fost.  Disc.  11.  n. 

(2)  See  Fost.  Disc.  232.  240.  243  (5)  Francia's  case,  1716.  Mr.  J. 
Willis's  case,  ib.  242.  S.  C.  8  St.  Tr.  Burnett's  MS.  1  East,  P.  C  133.  Ke- 
254,    255.   fol.   ed.  S.  C.     15  Howell's  lyng,  18. 

St.  Tr.    622.     Smith's  case,  Fost.  240.  (6)  Greg's  case,  1  East,  P.  C.  134. 

243.  (7)  Fost.  Disc.  10. 


(d)  See  Note  228,  p.  250. 


118  Of  Confessions  by  Prisoners.  [Ch.  5. 

Foster;  and  by   the  judges  in   the   commission,    on  the   trial    of 
the  rebels  in  1746.  (1) 

If  the  overt  act  of  high  treason,  alleged  in  the  indictment,  is 
the  assassination  of  the  king,  or  any  direct  attempt  against  his 
39  &  40  G.  3.  life  or  his  person,  it  is  plain  from  the  provision  of  the  stat.  39  & 
40  G.  J.  c.  3o.  (which  enacts,  that  in  such  cases  the  prisoner  shall 
be  tried  according  to  the  same  order  of  trial  and  upon  the  like  evi- 
dence as  if  he  stood  charged  with  murder,)  that  a  confession,  prov- 
ed by  a  single  witness,  will  be  sufficient  to  convict  the  prisoner,  (e) 
And  the  overt  acts  themselves  may  be  proved  by  a  single  witness. 
(2)    In  these  cases,  the  rule  of  the  common  law  is  restored. 

'In  all  cases  of  high  treason,  when  the  prisoners'  confession  is  of- 
ferred  in  evidence  as  confirmatory  of  the  testimony  of  the  wit- 
nesses, it  is  clearly  admissible,  though  proved  by  a  single  wit- 
ness. (3)  (/)  And  with  regard  to  all  facts  merely  collateral, 
which  no  not  conduce  to  the  proof  of  the  overt  acts,  it  may  be  laid 
Proof  of  col-  down  as  a  general  rule,  that  whatever  was  ev  dence  of  them  at 
common  law,  is  still  good  evidence  under  the  statute  of  William. 
(4)  A  confession  therefore,  of  such  collateral  facts  is  still  admissi- 
ble in  evidence  though  proved  by  a  single  witness. 


Principle 
the  rule. 


of 


From  the  above-cited  cases,  it  appears  now  to  be  an  established 
rule,  that  a  full  and  voluntary  confession  by  ilie  prisoner,  of  the 
overt  acts  charged  against  him,  if  proved  by  two  witnesses,  isof  it- 
self sufficient  evidence  to  warrant  a  conviction,  {g)  And,  although 
M.  Justice  Foster  suggests,  (5)  that  "  the  rule,  for  admitting  a 
confession  against  the  prisoner,  ought  not  to  extend  further  than 
to  a  confession  made  during  tlie  solemnity  of  an  examination 
before  a  magistrate,  or  before  some  person  having  authority  to 
take  it,  when  the  party  may  be  presumed  to  be  properly  upon 
his  guard  and  apprised  of  its  danger,"  no  distinction  of  this  kind 
is  to  be  found  in  the  authorities  before  mentioned.  On  the  con- 
trary, in   Francia's  case  the  judges   resolved,  that  the  confession 

(1)  Fost.  Disc.  11.  n.  (t).  1  East,  And  see  Crossfield's  case,  26  How- 
P.  C.  134.  ell's  St.  Tr.  56,  57. 

(2)  See  infra,  chap.  7.  sec.  1.  (4)   Fost.  Disc.  242. 

(3)  Willis's  case,  8  St.  Tr.  254,  foi.  (5)  Fost.  Disc.  243.  4  Black. 
ed.  S.  C.    15  Howell's  St.    Tr.    622.—  Com.  356. 


(e)  See  Note  229,  p.  250.     (/)  See  Note  230,  p  251,     {g)  See  Note  231,  p.  251. 


Sect.  6.]  Of  the  Competency  of  the  Party  injured^  ^c.  11  ^ 

would  be  evidence,  whether  made  before  a  magistrate,  or  in  the 
course  of  conversation. (1)  And  there  appears  to  be  no  solid 
ground  for  such  a  distinction;  as  confessions  are  admissible  in  tri- 
als for  high  treason,  precisely  on  the  same  principle  which  made 
them  evidence  at  common  law. 

The  observations  of  Mr.  Justice  Foster,  on  the  subject  of  con- 
fessions in  cases  of  high  treason,  relate  to  the  effect  of  this  sort  of 
evidence,  rather  than  to  its  admissibility.  "  Hasty  confessions,"  he 
says, (2)"  made  to  persons  having  no  authority  to  examine,  are  the 
weakest  and  most  suspicious  of  all  evidence.  Proof  may  betoo 
easily  procured  :  words  are  often  mis-reported  whether  through 
ignorance,  inattention,  or  malice — it  mattereth  not  to  the  defend- 
ant— he  is  equally  affected  in  either  case:  they  are  extremely  lia- 
ble to  misconstruction;  and  withal,  this  evidence  is  not,  in  the  or- 
dinary course  of  things,  to  be  disproved  by  that  sort  of  negative 
evidence,  by  which  the  proof  of  plain  facts  may  be  and  often  is 
confronted." 

The  proof  of  a  confession  will  depend  upon  the  manner  or  form  Proof  of  con- 
in  which  the  confession  was  made.  A  verbal  confession,  which  *'^*'""" 
has  not  been  taken  down  in  writing  judicially,  will  be  proved  by 
some  person,  who  heard  the  prisoner  confess.  A  confession,  tak- 
en in  writing  on  an  examination  before  a  magistrate,  is  to  be  prov- 
ed by  tlie  magistrate  or  his  clerk,  testifying,  that  the  examination 
was  truly  taken,  and  contains  the  true  substance  of  what  the  pris- 
oner said  upon  his  examination.  (3)  (/i) 

Sect.  VI. 

Of  the  Competency  of  the  Party  injured,  as  Witness  in  Criminal 

Prosecutions. 

Tt  is  a  general  rule,  that  in  criminal  prosecutions  the  injured 
party  may  be  a  witness:  although  on  the  conviction  of  the  prison- 
er he  will  in  many  cases  be  entitled  to  a  reward.  *(i) 

(1)    See  Burret  J.    MS.  cited  1  East,         (2)  Fost.  Disc.  243. 
P.  C.  113,  and  Kclyng,  19.  (S)  2  Hale,  P.  C.  51,  2S4,  2S5. 


*  A  note   was  inserted  in  a    former  ediiion  of  this   work,  mentioning   the  sevemi 
acts  of  parliament,  which   contain  provisions  respecting  the   granting  of  ceriificates 


ih)  See  Note  232,  p.  251.     (i)  See  Note  233,  p.  251. 


120  Of  the  Competency  of  the  Party  injured,    [Ch.  6. 

Robbery.  It  is  ilie  constant  practice,  on  an   indictment  for  robbery,  to  ad- 

mit the  evidence  of  a  {)crson  who  lias  been  robbed;  and  it  is  not  a 
siiflicieut  objection,  that  lie  will  be  entitled  to  ilie  restitution  of  bis 
property,  on  the  conviction  of  the  oflender.  (J)  The  same  evi- 
dence is  admitted  in  prosecutions  for  a  cheat  (1)  or  for  perjury  ;(2) 
and  in  the  case  of  perjury,  it  is  not  material,  whether  the  parly 
lias  or  has  not  satisfied  tlie  judgment  in  the  suit,  in  which  the  per- 
jury was  committed.  It  was,  indeed,  at  one  time  thougiit  an  in- 
dispensable requisite  to  show  the  judgment  satisfied  ;  (3)  on 
the  supposition,  that  the  party,  in  case  of  his  procuring  a  convic- 
tion, might  use  it  for  the  purpose  of  obtaining  relief  in  equity 
against  the  judgment.  But  as  it  is  now  an  established  rule,  that  a 
court  of  equity  will  not  grant  relief  on  a  conviction,  which  proceeds 
on  the  evidence  of  the  prosecutor, (4)  there  can  be  no  objection  to 
his  being  admitted  a  witness. 

In  other  cases  also  the  party  aggrieved  will  be  allowed  to 
give  evidence  on  a  criminal  prosecution,  (Jc)  as  he  cannot  after- 
wards avail  himself  of  the  record  of  conviction  in  any  future  suit,  in 

(1)  Paris'3  case,  1  Vent.  42.  2  Sid.  R.  v.  Proughton  as  over-ruling  the  three 
431,   S.  C.     R.    V.    Macartney,  1    Salk.     last-mentioned  cases. 

2S6.  (3)  R.  V.  Eden,   1  Esp.    N.  P.   C.  97. 

(2)  R.  V.    Broughton,  2   Stra.    1230.     R.  v    Daldy,  Peake,  N-  P.  C    12- 

R.  V.  Boston,  4    East,  581.  R.    v.  Ellis,  (4)   Barllet    v.    PicKei.-gill,     cited    in 

2  Stra.  1104.   R.  v.    Nunez,  2  Str.  10^2.  Abraham    v.    Bunn,  4    turr.    22£5,   by 

R.    V.    VVhiling,    1    Salk.    283,    contra.  Lord  Mansfield    C.  J.  and  in    R.  v.  Bos- 

But  Lord  Mansfield,  in  Abraham  q-  t-  ton,  4  East,  577,  by  Lord  Ellenborough, 
V.  Bunn,  4  Burr-  2255,  cites   the  case  of 


or  pecuniary  rewards  on  the  conviction  of  ofi'enders.  Many  of  these  provisiens 
have  been  repealed  by  the  statute  58  G.  3,  c-  70  This  staiute  reciies,  as  a  fact 
found  by  experience,  that  the  rewards  which  have  been  given,  have  not  produced 
the  efl^ect  intended  in  checking  crimes,  and  that  tiie  hope  or  expectation  of  obtain- 
ing such  rewards  has  instigated  evil-disposed  persons  lo  conspire  to  entrap  the  un- 
wary and  ignorant  into  the  commission  of  offences,  for  which  they  have  afterwards 
been  apprehended  and  prosecuted  to  conviction  l)y  such  conspirutors-  The  statute, 
therefore,  repeals  all  provisions  of  this  kind  in  the  following  acts  of  parliament: 
St.  4  \V.  &  M.  c.  8,  s  2;  st.  6,  7  VV.  3,  c.  17,  s  9;  st  5  Ann,  c.  31,  s.  1;  st.  14  G- 
2,  c.  6,  s  2;  st-  15  G  2,  c  28,  s.  7.  The  power  of  granting  rewards  by  st.  6  G.  1, 
for  apprehending  and  prosecuting  to  conviction  prisoners  charged  with  taking  re- 
wards for  helping  to  .stolen  goods  without  prosecuting  the  felon,  and  by  st  9  G.  2,  c 
35,8.  11,  for  apprehending  and  convicting  smugglers  who  oppose  custom-houae 
and  excise  othcers  by  force  of  arms,  and  by  st.  9  G  1,  c  22,  s.  12,  for  apprehending 
and  convicting  for  the  offences  there  mentioned,  is  still  unrepealed. 

(j)  See  Note  234,  p.  252.    (k)  See  Note  235,  p-  252. 


Sect.  6.]  171  Criminal  Prosecutions.  121 

order  to  prove  the  criminal  act.  (1)  For  this  reason,  it  is  conceiv-  Perjury. 
ed,  on  an  indictment  for  perjur}',  the  party  injured  may  be  a  wit- 
ness, whether  the  prosecution  is  by  the  common  law,  or  founded 
on  the  Stat,  .'i  Eliz.  c.  9,  which  gives  liim  Imlf  the  forfeiture  incur- 
red; for  if,  in  an  action  to  recover  his  moiety,  he  would  be  preclud- 
ed from  giving  the  conviction  in  evidence,  the  oljection  pguinst  his 
conripetency  seems  to  be  removed.* 

An  exception  to  this  general  rule  has  been  made  in  prosecu-  Rule  in 
tions  for  forgery;  in  which  case,  the  person,  whose  nasne  is  ^^'S^'y- 
forged,  or  upon  whose  genuine  name  a  forgery  is  committed,  is 
not  admitted  (o  prove  it  forged,  if  he  would  either  be  liable  to 
be  sued  upon  the  instrimient  (supposing  it  genuine,)  or  be  there- 
by deprived  of  a  legal  claim  against  another;  in  other  words,  if 
he  has  an  intei'est  in  the  destruction  of  what  is  supjiosed  to  be 
forged.  (2)  f  It  seems  to  be  (he  prevailing  opinion,  that  his  Material  facts. 
incompetency  is  not  confined  to  the  single  point  of  falsifying  the 
hand-writing,  but  that  he  is  equally  incompetent  to  prove  any 
other  fact,  which  contributes  to  the  proof  of  the  forgery, 
or  any  fact  conducive  to  the  general  conclusion.  This  sub- 
ject was  much  discussed  in  a  late  case,  (3)  v»here  on  a  pros- 
ecution for  forging  a  promissory  note,  (on  which  there  was  an 
indorsement  in  the  prisoner's  hand-writing,  that  a  year's  interest 
liad  been  paid,)  one  of  (he  points  reserved  was,  whether  the  per- 
son, by  whom  the  note  purported  to  be  made,  ought  to  have 
been  permitted  to  prove,  that  he  had  never  paid  any  interest  on 
the  note,  as  was  pretended  by  the  indorsement.  This  evidence 
was  received  on  the  trial,  the  fact  of  the  forgery  having  been 
first  proved;  but,  according   to  the  report,  it  seems  to   have  been 

(1)  Bartlet  v-  Pickersgill,  4  East,  3  Salk.  172,  S.  C.  Rhode's  case,  2  Str. 
577,  n.  (6)  S.  C.  1  F.den,  515  S.  C.  72t.  1  Leach,  Cr.  C.  29,  S.  C.  Russell's 
1  Cox.  Cas.  15.  R.  v.  Boston,  4  East,  case,  1  Leach,  10.  Cathy's  case,  2  East, 
681,  Stnilh  V.  Rummens,  i  Canipb.  9.  P.  C.  995.  Taylor's  case,  1  Leach, 
Halhavvay  V.  Barrow,  1  Cainpb.  151.  255.  Crocker's  case.  2  New.  Rep.  87. 
Burdon  v.  Browning,  Taunt.  520.  (3)  Crocker's  case,  Salib.  Ass.   1805, 

(2)  Bayley  on  Bills,  4lh  ed.  450.  before  Le  Blanc  J.  2  New.  Rep  S7, 
The  cases  on" this  subject  are  the  fol-  90.  Rus.s.  Ry.  Cr-  C.  97,  S.  U.  R. 
lowing:        Walt's     case,      Hard.     331.  v.    Bunting,  2  East,  P.  C   996. 

*  Ruled  contra  in  an  old  case;  Bacon's  case.  2  Roll.  Abr.  687;  Bull.  N.  P.  239. 
S.  C.      GilbEv   111,  S.  C. 

t  Respecting  the  mode  of  restoring  the  competency  of  the  witness  m  such  case. 
Bee  post,  Sect.  8. 

Vol.  I.  16 


122  Of  the  Competency  of  the  Party  injured,     [Cli.  5. 

Collateral  generally  understood,  that  the  majority  of  the  judges  considered 
the  evidence  inadmissible.*  When,  however,  the  fact  is  merely 
collateral,  and  does  not  in  any  way  contribute  to  the  proof  of  the 
forgery,  as,  where  a  witness  is  called  to  prove  himself  the  person, 
whom  the  prisoner  intended  to  personate  or  describe,  in  such  a  case 
his  testimony  has  been  admitted.  (1) 

Prosecutor  If  the  witness  would  not  incur  any  loss,  nor  be  liable  to  a  suit, 

tenUn^caae  of  whatever  may   be  the  result  of  the   prosecution;  in  other    words, 
forgery.  if  he  has  no  interest  in  the   instrument  supposed  to  be  forged,   his 

evidence  ought  to  be  received.  Thus,  on  an  indictment  for  forg- 
ing a  bank-note,  in  the  name  of  a  cashier  of  the  Bank  of  Eng- 
land "  for  the  governor  and  company,"  the  cashier,  not  being 
chargeable,  may  be  a  witness.  (2)  And  on  a  prosecution  for 
forging  an  acceptance  to  a  bill  of  exchange,  where  the  banker 
had  paid  the  bill,  but,  suspecting  a  forgery,  had  not  debited  the 
person  whose  name  was  forged,  this  person  was  admitted  to 
give  evidence.  (3)  So,  in  Wells's  case,  (4)  where  the  prisoner 
was  tried  for  forging  a  receipt,  the  person,  whose  name  the  re- 
ceipt purported  to  bear,  having  before  recovered  the  money  from 
the  prisoner,  was  admitted  to  prove  the  forgery.  The  payee  of 
a  bill  of  exchange,  who  was  employed  to  pay  the  produce  m  dis- 
charge of  a  debt  owing  from  the  drawer,  but  had  not  received 
the  bill,  is  competent  to  prove  the  forgery  of  his  name.  (5)  And 
the  maker  of  a  note,  which  purports  to  be  payable  on  demand 
at  his  own  place  of  residence  or  at  a  banker's,  but  has  not 
been  paid  at  either  place,  is  competent  to  prove  that  he  did  not 
make  it  payable  at  the  banker's.  (6)  A  person,  whose  name  has 
been  forged  to  a  power  of  attorney  for  selling  stock,  is  competent, 

(1)  P.irr's  case,  2  Leach,  Cr.  C.  487,         (3)  Usher's  case,  Leach,  Cr.  C  57. 
491.     2  East,  P.    C.    997,    S.    C.     But         (4)  Bull.  N.  P.  289.     2   East,    P.    C. 
it  seems    not    quite    settled,    that   he    is     lOOO,  S.  C. 

competent,    even  on   such   points.     See  (5)  Sponsonbjr's  case,    1    Leach,  Cr. 

Bayley  on  Bills,  4th  ed.  450.  C.  374. 

(2)  Newland's  case,  1  Leach,  Cr.  C.  (6)  Treble's  case,  2  Taunt.  328. 
850. 

♦  Lord  Ellenborough  C.  J.,  Mr.  Justice  Lawrence,  and  Mr.  Justice  Lc  Blanc, 
thought  the  witness  nrlmissible,  because  it  had  been  sufficirnlly  proved  before,  that 
the  note  was  not  signed  by  him;  and  ihey  thought  him  admi.ssil.le  to  all  points  ex- 
cept that  of  the  forgery.  Some  of  the  other  judges  seemed  to  think,  that  to  pointB 
perfectly  collateral  he  would  have  been  admissible,  but  they  considered  the  point 
to  which  he  was  called,  n>  oontributing  to  prove  the  forgery.  Bayley  an  Bills,  4tb 
•d.  450,  Nat». 


J?lect.  6.]  in  Criminal  Prosecutions,  123 

if  the  stock  has  not  been  sold.  (1)  Where  the  forgery  consists  in 
altering  a  genuine  instrument,  thereby  giving  the  bill  or  note  a  bet- 
ter credit,  but  not  varying  the  responsibility  of  the  drawer  or  maker, 
the  drawer  or  maker  is  a  competent  witness  to  prove  the  forgery.  (2) 

Upon  what   principle,  it  iTiay  be  asked,  is  a  party,  by  whom  an  Reason  of  thU 
instrument  purports  to   be  made,  incompetent  to   prove  it  forged?  *"^P '<'°- 
In  Watt's  case,  (3)  on  an  information  for  the  forgery  of  a  deed  pur- 
porting to  be  the  revocation  of  a  will,  it  was  adjudged  by  the  barons 
of  the  excliequer,  after  a  conference  with  the  judges  of  the  King's 
Bench,  that  no  legatee  named  in  the   will,   nor  any  other  person 
\v1io  is  a  loser   by  the   deed,  or  who   may  receive  any  advantage 
from  the  verdict,  can   be  a  witness  for  the  prosecution:  and  a  dis- 
tinction was  made  between  the  case  of  an  indictment  for  a  battery, 
(whefe,  it  was  admitted,  the   person  beaten  may  be  a  witness,  be- 
cause lie  can  reap   no  benefit  by  the  verdict  in  another  suit,)  and 
the  cases  of  forgery,  perjury,  or  usury,  in  which,  it  was  said,  the 
party  aggrieved  may  have  an  advantage  by  the  verdict,  and  there- 
fore shall  not  be  received  as  a  witness.     It  is,  however,  now  an  es- 
tablished rule,  that  on  a  prosecution  for  perjury,  (4)  the  party  ag- 
grieved is  competent:  and,  that  a  person  who  has  borrowed  money 
on  an   usurious   transaction,  is   also  a   competent  witness  for  the 
plaintiff  in  an   action  for  perialties  against  the   lender;   (5)  for  he 
gains  nothing  by  the  event  of  the  suit,  nor  can  he  give  the  judg- 
ment in   evidence  in   an  action   against   him  for  the   money  lent. 
The  case  of  forgery,  therefore,  is  considered  an  anomaly  in  the  law 
of  evidence;  {&)  and  though  such  an  objection  has  been  allowed 
in  criminal  prosecutions  for  forgery,  yet,  in  a  civil  suit,  if  a  question  CItU  suit, 
arise  collaterally  and  incidentally,  as  to  the  genuineness  of  a  written 
instrument,  the  person  whose  name  it  purports  to  bear,  is  compe- 
tent to  prove  the  forgery.  (7) 

(1)  R.  V.  Wait,  1  Biiig.  121.  (4)  See  ante,  p.  112. 

(2)  Bayley  on  Bills,  4th  ed.  452.  (5)  Abraham   q.  t.    v.  Bunn,  4   Burr. 

(3)  Watt's  case,  3   Salk.   172,  more  2251.  Smith  v.  Prager,  7  T.  R.  60. 
fully    reported     in     Hardr.    331.      See  (6)  4   East,    582.     4   Barn.   &    Aid. 
4    Burr.    2254,    where    Lord    Mansfield  210- 

says,  that  this   and   other   cases   of  the         (7)  Hunter  v.   King,  4  Barn.    &  Aid- 
came   kind   "  were   not   considered     or    209. 
looked  into." 


124  Of  the  Competency  of  the  Party  injured,  ^c.    [Ch.  5. 

The  reason,  assigned  in  Watt's  case,  is,  that  the  witness  would 
receive  a  benefit  from  the  verdict;  and  it  has  been  suggested,  (1) 
that  he  is  interested  to  procure  a  conviction,  on  the  ground  that  a 
conviction  would  have  the  effect  of  inducing  a  forfeiture,  and  thus 
defeat  every  legal  claim  or  security,  which  the  prisoner  might  have 
upon  the  instrument.  On  tlie  other  hand,  it  may  be  said,  if  the 
parly,  l)y  whom  the  instrument  purports  to  be  made,  were  admit- 
ted a  witness,  he  would  not  be  allowed  afterwards  to  produce  the 
record  of  conviction  in  a  civil  suit  for  the  purpose  of  proving  the 
supposed  forfeiture,  because  the  conviction  must  have  proceeded 
partly  upon  his  own  testimony.  (2)  And  if  he  would  be  preclud- 
ed from  using  the  record  of  conviction  against  the  prisoner,  and 
might  therefore  be  admitted  to  give  evidence  on  the  trial  consist- 
ently with  the  general  rule;  still  less  reason  is  there  for  excluding 
him  in  those  cases,  where  the  instrument  purports  to  be  made  for 
the  benefit  of  a  third  person,  or  where  it  has  since  become  a  third 
person's  property,  in  either  ol  which  cases  it  would  not  be  liable  to 
forfeiture. 

With  regard  to  any  probable  advantage,  which  the  witness  may 
be  supposed  to  receive  from  a  conviction,  by  the  prisoner's  being 
disabled  from  giving  evidence  in  any  future  suit,  or  from  \he  great 
probability  of  his  failing  in  an  action  in  consequence  of  the  discred- 
it which  a  conviction  must  throw  upon  the  instrument,  (3)  these 
are  circumstances,  which  a  jury  would  be  directed  to  consider  as 
forming  a  strong  bias  on  the  witness's  mind,  but  which  cannot 
render  him  incompetent.  Upon  the  whole,  the  most  intelligible 
reason,  which  has  been  assigned  for  the  prevailing  rule,  is,  because 
the  indictment,  in  a  prosecution  for  forgery,  may  be  considered  in 
some  decree  as  a  proceeding  in  rem,  and  a  conviction  would  war- 
rant a  judicial  cancellation  of  the  forged  writing.  (4)*  But  the  ex- 
ception is  manifestly  anomalous  and  inconvenient;  and  requires 
the  interference  of  the  legislature.  (/) 

(1)2  East,  p.  C.  994.  (3)  See  2  East,  P.  C.  994. 

(2)  Vid.  infra,  part  2.  ch.  2,  sect.  3.  (4)  13ayley  on  Bills,  4th  ed.  450. 


*  By  the  law  of  Scotland,  such  an  objection  to  a  witness,  in  a  prosecution  for  for- 
gery, is  never  allowed.     See  Burnett's  Criminal  Law  of  Scotland,  p.  444. 


(Z)  See  Note  236,  p.  253. 


Sect.  7.]  Exceptions  to  the  Rule  concerning  Interest.  125 

Sect.  VII. 
Of  certain  Exceptions  to  the  general  Rule  on  the  Subject  of  Interest. 

It  has  been  before  stated  as  a  general  rule,  that  all  persons, 
who  gain  or  lo^e  directly  by  the  event  of  a  cause,  are  incompetent  to 
give  evidence.  There  are,  however,  several  exceptions  to  this  gen-^ 
eral  rule:  some  by  act  of  parliament,  as,  where  informers  and  the 
inhabitants  of  parishes  or  other  districts  are  admitted;  otliers  from 
necesjity  (m)  or  a  principle  of  public  policy,  (n)  as,  where  evidence 
is  received  from  persons  who  are  entitled  to  rewards  on  convictions, 
or  from  agents,  factors,  or  servants.  Objections  on  the  ground  of 
interest  proceed  upon  the  supposition  of  too  groat  a  bias  in  the 
mind  of  the  witness,  and  on  the  public  utility  of  rejecting  partial 
testimony.  The  presumption  of  bias  may  be  taken  off",  by  show- 
ing that  the  witness  has  as  great  or  gieater  interest  the  other  way, 
or  that  he  has  given  up  what  interest  he  has:  and  the  presump- 
tion of  public  utility  may  be  answered,  by  showing  that  it  would 
be  very  inconvenient,  under  the  particular  circumstances,  not  to 
receive  such  testimony.  (1) 

First,  as  to  the  evidence  of  informers: 

By  the  common  law,  informers,  who  are  entitled  under  penal  tnformer«. 
statutes  to  part  of  a  penally,  are  not  competent  witnesses.  (2)  (o) 
But,  by  the  particular  provisions  or  policy  of  several  acts  of  par- 
liament, they  may  be  admitted.  Where  a  statute  can  receive  no 
execution,  unless  a  party  interested  be  a  witness,  there  he  must 
be  allowed,  says  Ch.  B.  Gilbert;  for  the  statute  must  not  be 
rendered  ineffectual  by  the  impossibility  of  proof.  (3)  Thus,  by 
Stat.  2  G.  2,  c.  24,  s.  8,  against  bribery  at  elections,  the  legis- 
lature, in  giving  an  indemnity  and  discharge  to  any  person  of- 
fending against  the  act,  who  shall  discover  any  other  offender 
so  that  he   may  be  committed,  must   also   have   intended,  that   he 

(1)  By  Lord  Mansfield,  1    Burr.  422.     Piercy,  Andr.  18.    R.  v.   Hlaney,    Andr. 

(2)  R.  V.    Tilly,  1    Stra.  315.     R.  v.     240.     3  Burr.  1473.     4  East,  181. 
Stone,   2   Ld.     Raym.    1545.        R.   v.         (3)  Gilb.  Ev.  114. 


(m)  See  Note  237,  p.  253.     (n)  See  Note  238,  p.  253.    (o)  See  Note  239,  p.  254. 


126  Exceptions  to  the  Rule  concerning  Interest.  [Ch.  6, 

should  be  competent  to  give  evidence  at  the  trial;  and,   therefore, 
in  an  action  for  penalties  ho  has  been  admitted.  (1) 

In  a  prosecution  on  stat.  21  G.  3,  c.  37,  against  exporting  ma- 
chinery, the  informer  is  competent.  (2)  So,  on  a  prosecution  for 
penalties  under  stat.  9  Ann,  c.  14,  s.  5,  the  loser  of  money  at  cards 
may  prove  his  loss.  (3)  And,  on  a  prosecution  under  stat.  23  G. 
2,  c.  13,  s.  1,  for  se  !ucing  artifices  to  go  out  of  the  kingdom,  the 
prosecutor  is  a  competent  witness,  although  entitled  to  a  moiety  of 
ihe  penalty.  (4)  Tiiere  is  no  express  provision  in  either  of  the 
three  acts  of  parliament  last  mentioned,  for  admitting  the  evidence 
of  the  party  interested. 

In  the  act  of  the  32  G.  3,  c.  56,  for  preventing  counterfeited  cer- 
tificates of  servants'  characters,  there  is  a  clause  by  which  the  evi- 
dence of  the  party  aggrieved  is  rendered  admissible;  (5)  and  a  sim- 
ilar provision  is  made  by  the  act,  (st.  33  G.  3,  c.  75,  s.  17,)  which 
regulates  hackney  coaches.  In  prosecutions  for  all  offences  pun- 
ishable on  summary  conviction  under  stat.  7  &  8  G.  4,  c.  29.  s. 
64,  the  evidence  of  the  party  aggrieved  is  admissible. 

£nhabitnnti.  Secondly,  as  to  the  evidence  of  the  inhabitants  of  a  parish  or  oth- 

er district. 

County  bridge.  On  an  indictment  against  private  persons  or  corporate  bodies 
for  not  repairing  a  public  bridge  or  the  highway  adjoining,  the 
inhabitants  of  the  county,  town,  riding,  &c.  in  which  the  bridge 
is  situated,  are  competent  witnesses  on  the  trial  of  such  a  prose- 
cution, by  the   1st  Ann,  stat.  1,    c.  18,  s.    13.     Even  before    this 

c.  18.  '  statute,  such  evidence  had  been  thought  admissible  from  ne- 
cessity. (6) 

Action  against  In  actions  against  churchwardens  or  overseers  of  a  parish,  for 
the  recovery  of  money  rais-spent  by  them,  inhabitants  of  the  parish 

(1)  Bush   V.     Raining,     Say,    289.         (5)  Sect.  7 

Mead    v.    Robinson.  Willes,   425.  He-         (6)    R.  v.    Carpenter,  2   Show    47; 

ward  V.  Shipley,  4  East,  182.  and    see  1  Ventr.    351.     Gilh.  Ev.  113. 

(2)  R.  V.  Teasdale,  3   Esp.  N.  P.  C     The   section   of  the  act   above  referred 
68.  to,    recites,   that  such    inhabitants  had 

(3)  R.  T.  Luckup,  Willes,  425.  (c)         not   been  allowed   by  judges   to  be   le- 

(4)  R.    T.    Johnson,     Willes,   425.     gal  witnesses. 
n.  (e). 


Sect.  7.]  Exceptions  to  ike  Rule  concerning  Interest.  127 

who  do  not  receive  alms  or  any  gift  out  of  the  parochial  collection, 

are  made  competent  witnesses  by  stat.  3  W.  3,  c.  11,  s.  12.  s  W.  8,  c.  li. 

In  an  action  asainst  a  hundred  by  a  party  who  has  been  robbed,  Against  hun- 

.  dred. 

the  inhabitants  of  the  hundred  may  be  witnesses  for  the  defend- 
ants, by  Stat.  8  G.  2,  c.  16,  s.  15.  Before  this  act  passed,  they  ^  ^-  2.  c  16. 
were  not  competent,  because  any  one  of  them  would  have  been 
liable  to  pay  the  debt,  in  case  of  judgment  against  the  hundred.  (1) 
The  party  robbed,  though  clearly  interested,  is  yet  competent  lo 
prove  the  robberv  and  the  extent  of  his  loss.  (2) 

By  the  general  rule  of  law,  the  inhabitants  of  a  parish  indicted  Highway*, 
for  not  repairing  a  highway,  are  not  competent  to  give  evidence 
for  the  parish,  (o)  But  on  trial  of  offences  committed  contrary 
to  the  highway  act,  it  is  provided,  that  any  inhabitants  of  any 
parish,  township,  or  place  in  which  such  offence  shall  be  com- 
mitted, shall  not  be  deemed  on  that  account  an  incompetent 
witness.  (4) 

And  by  4  G.  ■4,  c.  95,  s.  84,  it  is  enacted,  that  no  person 
shall  be  deemed  incompetent  to  give  evidence  in  any  action,  suit, 
prosecution,  or  other  legal  proceedings  to  be  brought  or  had  in 
any  court  of  law  or  equity,  or  before  any  justice  or  justices  of 
the  peace,  under  any  act  for  making  or  maintaining  any  turn- 
pike road,  or  under  the  act  of  3  G.  4,  by  reason  of  being  a  Trustee  cf 
trustee  or  commissioner  of  such  road,  or  a  mortgagee  or  cred-  "*  * 
itor,  of  the  tolls  thereof,  or  a  farmer,  lessee,  or  collector  of  such 
tolls,  or  a  treasurer,  or  clerk,  or  surveyor,  or  other  officer  under 
such  act. 

Where   pecuniary   penalties  are   directed  to  be  applied  to   the  Pecuniary 
use  of  the  poor,  or  for  the   benefit  and  exoneration  of  the  parish 
or  other  place,  the  inhabitants  are  rendered   competent  witnesses 
on  the  trial  of  the  offender,  by  stat.  27  G.  3,  c.  29,  provided  the  27  G.  S,  c.  29. 
penalty,  imposed  by  the  act  of  parliament,  does  not  exceed  twenty 

(1)  R.  V.  Carpenter,  2  Show.  47.  474.  Bnt  see  st.  54  G.  8,  c,  170,  be- 
2  Hale,  P.  C.  2S0.  R.  v.  Kirdford,  low  stated,  which  makes  inhabiianfg 
2  East,  561.  competent    in    any    matter    relating    to 

(2)  See  ante,  p.  70.  rates. 

(3)  1    Barn.   6c  Aid.   66.     16   East,  (4)  3  G.  4,  c.  126,  b.  1S7. 


itaiiis. 


^2^  Exceptions  to  the  Rule  concerning  Interest.  [Cli.  5. 

pounds.  (I)  And  by  st.  7  &  8  G.  4,  c.  29,  s.  64,  the  evidence  of 
any  inhabitant  of  the  place,  in  whicli  offences  punishable  on  sum- 
mary conviction  under  that  act  have  been  cotnmitied,  shall  be  ad- 
mitted, notwithstanding  any  penally  or  forfeiture  incurred  by  the 
offence  may  be  payable  to  the  general  rate  of  the  place. 

54  G.  3,  C.170.  It  lias  been  lately  provided  by  stat.  54  G.  3,  c.  170,  s.  9,  that  no 
Rated  itihab-  inhabitant  or  person,  rated,  or  liable  to  be  rated,  to  any  rates  or 
cesses  of  any  district,  parish,  township,  or  hamlet,  or  wholly  or  in 
part  maintained  thereby,  or  executing  or  holding  any  office  thereof 
or  therein,  shall  be  deemed  on  such  account  an  incompetent  wit- 
ness, for  or  against  such  district,  parish,  &c.,  in  any  matter  relating 
to  such  rates  or  cesses,  or  relating  to  tlie  boundary  between  such 
district,  parish,  &c.,  and  any  adjoining  district,  &c.,  or  in  any  mat- 
ter relating  to  any  order  of  removal  to  or  from  such  district,  or  lo 
the  settlement  of  any  pauper  in  such  district,  or  touching  any  bas- 
tards chargeable  or  likely  to  become  chargeable  to  such  district,  or 
touching  the  recovery  of  any  sum  for  the  charges  or  maintenance 
of  such  bastard,  or  the  election  or  appointment  of  any  officer,  or  the 
allowance  of  the  accounts  of  any  officer  of  any  such  district.  ( p) 

The  words  of  the  clause  above  mentioned,  which  provide,  that 
no  such  inhabitant,  as  is  there  described,  shall  be  deemed  incom- 
petent in  any  manner  relcUing  to  the  rales  or  cesses,  are  very  gene- 
ral, and  have  received  a  large  and  liberal  construction,  ahhough 
they  are  followed  by  other  ternis  of  a  more  particular  and  spe- 
cific kind.  In  the  late  case  of  Meredith  v.  Giljiin,  (2)  an  action 
of  trespass  against  the  overseers  of  a  township,  where  the  prin- 
cipal point  was,  whether  the  lands  in  question  were  vested  in  the 
overseers  under  a  local  act  of  parliament,  the  Court  of  Exchequer 
determined,  that  a  rated  inhabitant  of  the  township  was  not  an 
incompetent  witness  on  the  part  of  the  defendants,  although  the 
lands  in  question,  if  vested  in  the  defendants,  would  be  vested  in 
trust  for  the  township  tind  in  aid  of  the  poor-rates.  The  court 
considered  the  matter  in  issue  to  relate  to  the  rates. 

(1)    R.  V.  Davis,  6   T    R.  177.     Be-         (2)    6  Price,  146.     See    Rhodes     v. 
fore   liiis    sUil.  of  27  G.    3,    an    inlialiit-     Ainsworlh,  ante,  p.  58. 
ant,  rated  to  the    poor,  would  have  been 
incoiripetent.     Portmen  v.  Okeden,  Say- 
er,  179. 

(p)  See  Note  240,  p.  254. 


Sect.  7.]  Exceptions  to  the  Rule  concerning  Interest,  129 

Before  the  passine;  of  this  act,  it  had  been  determined,  on  aques-  ^^^^^  Inhabi- 

.  .  ^  tant. 

tion  of  settlement,  that  the  rated  uihabiiants  of  either  parish   could 

not  be  compelled  to  answer  against  their  own  paiish,  because  they 

are  in  reality  the  parties  to  the  proceeding;  (1)    and,  for  the  same 

reason,  the  declarations  of  a  rated  inhabitant  were  adjudged  to   be 

admissible  against  his  parish.  (2) 

Thirdly,  persons  entitled  to  rewards  on  the  conviction  of  offen-  Entitled  to 
ders,  (whether  the  rewards  are  given  by  act  of  parliament,  by  proc- 
lamation, or  by  private  persons,)  and   persons  entitled   to  the  res- 
titution of  their  property  on  the  conviction  of  a  thief,  (3)  are  com- 
petent to  give  evidence.  (4) 

Fourthly,  the  admitting  of  the  evidence  of  agents,  servants,  and  va^i^s'"^-' ^d"^' 
factors,  has  been  considered  an  exception  to  the  general  rule;  "forfaciors. 
the  sake  of  trade  and  the  common  usage  of  business."  (5)  And 
this  was,  properly  speaking,  an  exception  formerly,  when  interest 
in  the  question  was  taken  as  a  test  of  competency.  But  now,  as 
the  true  criterion  is,  whether  a  witness  is  interested  in  the  event  of 
the  cause,  the  evidence  of  agents,  servants,  and  factors,  for  the 
purpose  of  proving  contracts  made  by  them  on  behalf  of  their  prin- 
cipals, would  be  admitted,  under  the  general  rule,  and  not  by  way 
of  exception,  {q) 

A  factor  may  prove  a  sale,  though  he  is  to  receive  a  poundage  Factor, 
on  its  amount,  (6)  or  what  he  has  bargained  for  beyond  a  stated 
sum.  (7)  (r)  And  every  person  who  makes  a  contract  for  another, 
is  an  agent  within  the  meaning  of  this  rule.  (8)  It  is  the  com-  Servant, 
mon  practice  to  admit  servants  and  carriers,  to  prove  the  payment 
or  receipt  of  money,  or  the  delivery  of  goods  on  behalf  of  their 
master  or  principal.  (9)     Thus,  if  money  has  been  overpaid  by  a 

(1)  R.  V.    Woburn,    10   East,    403.         (6)  Dixon  v.  Cooper,  3  Wils.    40.     1 
See  ante,  p.  91.  Atk.  2-18. 

(2)  R.  V.  Whillev  Lower,   1    Mnule,         (7)  Benjnmin   v.   Porteus,  2   H.    Bl. 
Selw.    636.       In    ihis  r;isc    ihe    person,  590.     R.  v.  Pliipps,  Bull.  N.  P.    289. 
whose    declnration.s     were   offered,    wns         (8)   2  H.  Blac.   591. 

not  called  as  a    vilncss,  nor   had   he  re-         (9)   By  Holt    C.    J.    in    Theobald    v. 

fused  to  give  evidence.  Tregott,    11    Mod.    262.       Bull     N.    P. 

(3)  Bv  St.  21  H.  8,  c    11.  239.       4    T.  R.    589,    590.       Mathews 

(4)  Rudd's  case.  Leach,  Cr.  C.    157.  v.     Haydon,     2     Esp.     N.   P.    C.    509. 
158.       lb.  353,  n.     Hawk.  P.  C.    b.    2,  Spencer  v.    Goldinj;,    Peake,    N.    P.    C.    . 
c.  46,  s.  135.  129.       Adams  v.  Davis.  3  Esp.  N.  P.  C. 

(5)  Fortcsc.  247.       Bull.  N.    P.  289.  48. 
By  Eyre  C.  J.  2  U.  Bl.  591. 


(g)  See  Note  241,  p.  254.     (r)  See  Note  242,  p.  265. 

Vol.  I.  17 


150  Exceptions  to  the  Rule  concerning  Interest.  [Ch.  5. 

Steward.  servant,  or  paid  by  mistake,  he  is  a  competent  witness,  in   an   ac- 

tion to  recover  it  back.  (1)  (s)  So,  where  the  question  was  on  the 
custom  of  a  manor,  whether  a  fine  was  due  to  the  lord  during  his 
minority  on  the  tenant's  admission,  the  standard  of  the  manor  was 
allowed  to  give  evidence  for  the  lord,  though  it  was  objected  to 
him,  that  he  would  be  entitled  to  a  fee  on  admission,  which  he 
would  lose,  if  the  tenant  were  not  admitted.  (2) 

Agents  when  But  though  agents  and  brokers  are  competent  to  prove  a  sale  or 
not  competent,  ^qj^^j.^^j^  ^j^gy.  ^^.g  ^^^  competent  to  prove  the  contract  properly  ex- 
ecuted, in  an  action  against  the  principal  for  their  misconduct  or 
negligence.  Thus,  in  an  action  against  the  defendant  for  purchas- 
ing goods  of  an  inferior  quality.  Lord  Ch.  J.  Gibbs  rejected,  as  an? 
incompetent  witness,  the  broker  of  the  defendant,  who  was  called 
to  prove  that  he  had  purchased  goods  of  the  best  quality.  (3)  And 
where  a  person  has  entered  into  a  contract  for  the  purchase  of 
goods  in  his  own  name,  it  has  been  held  that  he  is  not  a  competent 
witness,  in  an  action  for  goods  sold  and  delivered,  to  prove  that  he 
purchased  them  as  the  agent  for  the  defendant.   (4) 

Workmen.  In  an  action  of  trespass,  where  the  question  is,  on  a  plea  of  li- 

cence, whether  the  defendant  has  exceeded  what  he  had  the  plain- 
tiff's permission  to  be,  the  defendant's  workmen,  employed  to  do 
the  work,  are  competent  witnesses  on  his  behalf:  for  though  the 
plaintiff  may  have  a  verdict,  yet  it  does  not  follow  that  the  work- 
men would  be  liable,  and  the  verdict  would  certainly  not  be  evi- 
dence against  them.  (5)  (t) 

Servant  when  Where  the  act  of  the  servant  has  been  out  of  the  ordinary 
not  competen  .  ^^^^.^^  ^^  j^jg  employment,  and  a  mere  breach  of  duty,  the  prin- 
ciple does  not  apply;  and  it  has,  therefore  been  held,  that  in 
such  a  case  the  seivant  is  not  a  witness  for  his  master  without  a 
release.  Thus,  in  an  action  to  recover  back  money,  which  had 
been  intrusted  to  the  plaintiff's  servant  for  a  special  purpose 
and  paid  by  the  servant  in  illegal  insurances,   he   was  considered 

(1)  Martin  V   Howell,    1    Stra.    647.     N.  P-  C.  138,  and  see  ante,  p.  56. 
Barker  v.  Macrae,  3  Canipb.  144.  (4)   M'Braine  v.    Forlune,  3    Campb. 

(2)  Champnin    v.   Atkinson,    3   Keb.     317. 

90.     Rep.  temp   Hard-  360.  (5)  Cuthbert  v.    Gostling,  3   Campb. 

(3)  Gevers  V.    Mainwaring,    1    Holt,     515. 

(s)  See  Note  243,  p.  255-     (i)  See  Note  344,  p.  256. 


Sect.  8.]  Of  restoring  the  Competency,  ^c.  131 

incompetent  vviiliout  a  release.  (1)  And  in  an  action  against  the 
defendant  for  tlie  negligence  of  his  servant,  the  servant  is  not  com- 
petent to  disprove  the  fact  of  his  negligence:  (2)  for  since  the  ver- 
dict might  be  given  in  evidence  in  an  action  by  the  defendant 
against  the  witness,  as  to  the  quantum  of  damages,  the  servant  is 
directly  interested  to  defeat  the  action,  (w) 


Sect.  VIII. 

Of  the  Means  by  which  the   Competency  of  an  interested  Witness 
may  be  restored. 

The  last  question  that  remains  to  be  considered,  on  this  part  of 
our  subject,  relates  to  the  regular  mode  of  making  the  objection(v) 
to  the  competency  of  a  witness,  and  tJie  means  of  restoring  his 
competency. 

The  rule   formerly  was,  that  the  obieciion  ought  to  be  made  on  Objection 

,    .-         I       r        .  .       .       .       ,  .   f.   .  when  taken, 

the  vou-e  dire,  and,  if  made  after  the  examination  m  chief,  it  would 

not  have  the  effect  of  excluding  the  witness;  though,  even  then, 
liis  incompetency  might  be  shown  in  another  stage  of  the  proceed- 
ing, for  the  purpose  of  impeaching  the  v.'itness' credit.  (3)  But  for 
the  convenience  of  the  court,  and  because  the  incompetency  may 
not  at  first  be  suspected,  a  greater  latitude  has  been  since  allowed. 
And  now,  if  it  is  discovered  during  any  part  of  the  trial,  that  a  wit- 
ness is  interested,  his  evidence  will  be  struck  out.  (4)  (w) 

The   party,  against  whom  a  witness  is  called,  may  examine  him  How  raised, 
respecting  his   interest  on  the  voire   dire,  (x)  or  may  call  another 
witness,    and    produce   other  evidence,   in   support   of  the  objec- 
tion, {y)   The  old  rule  is  said  to  have  been,  (5)  that,  if  the  witness 

(1)  Corking  v.  Jarrard,  1  Campb.  4  T.  R.  589.  Biid  v.  Thompson,  1 
37.  In  Clarke  v.  Shee,  Cowp.  199,  Esp.  N.  P.  C.  339.  Miller  v.  Fal- 
which  was  a  similar  case,  a  release  coner,  1  Campb.  251.  6  Esp.  N.  P. 
was   given.       See    anonymous    case,    1  C.  73. 

Salk.    289;  Bull.    N.  P.  39,  289,  S.  C;  (3)  See  Ld.   Lovat's   case,  9  St.  Tr. 

and   anonymous   case,  Bull.  N.    P.  280.  646.    fol.    ed.    S.    C.     18    Howell's    St. 

These     were   actions    by    a    master    to  Tr.  596. 

recover     property     embezzled     by     his  (4)  Turner  v.    Pearce,   1  T.    R.  720. 

servant,    and    the    servant    was    admit-  Perigal     v.     Nicholson,    1     Wightwick, 

ted    a  witness  to  prove   delivery  to  the  64.     Howell  v.  Lock,  2  Campb.  14. 

defendant;    but     it     does     not    appear  (5)  By    Lord     Hardvvicke,    in   Lord 

whether  the  plaintiff  gave  a  release.  Lovat's   case,  9  St.  Tr.  647,  fol.  ed.  S. 

(2)  Green   v.  New   River  Company,  C.  18  Howell's  St.  Tr.  596. 

(u)  See  Note  245,  p.  256.  (v)  See  Note  246,  p.  256.  (w)  See  Note  247,  p.  256. 
(i)  See  Note  248,  p.  257,     (y)  See  Note  249,  p.  958. 


132  Of  restoring  the  Competency  [Ch.  5. 

were  examined  by  the  opposite  party  as  to  the  fact  of  the  ohjeciion, 
and  denied  it  upon  his  oath,  the  party  would  not  be  at  liberty  to 
call  afterwards  another  witness  to  prove  it,  in  order  to  repel  him 
from  giving  evidence,  unless  the  other  side  acquiesced,  (z)  But 
the  modern  and  more  convenient  practice  seems  to  be,  that  if  the 
fact  of  interest  is  satisfactorily  proved,  the  witness  will  be  incompe- 
tent, though  he  may  have  ventured  to  deny  it  on  the  voire  dire,  (a) 

Examination  ^  witness   may  be  examined,  on  the   voire  dire,  as  to  the  con- 

on  voire  dire,  tents  of  a  will  or  deed,  or  other  written  instrument,  under  which 
he  is  supposed  to  acquire  an  interest  in  the  subject  matier  of  the 
suit,  {h)  'J'he  general  rule,  vvliich  requires  a  notice  to  be  given  for 
the  production  of  a  written  instrument,  before  a  witness  can  be  al- 
lowed to  speak  to  its  contents,  does  not  apply  to  such  a  case;  for 
the  opposite  parly  may  possibly  be  ignorant  of  its  existence,  and 
cannot  be  supposed  to  know  that  a  particular  witness  would  be 
called  on  the  other  side,  (c)  But  if  the  witness  himself  produces 
the  very  instrument,  on  which  the  objection  to  his  competency 
rests,  the  instrument  ought  to  be  read,  as  the  best  proof  of  the  wit- 
ness' situation.  (1) 

Objection  re-^  When  the  objection  arises  from  a  witness'  answer  on  the  voire 
dire,  it  may  be  likewise  removed  on  the  voire  dire,  (c?)  Thus, 
where,  in  an  action  brought  by  a  chartered  company,  a  witness 
for  the  plaintiffs  admitted,  on  the  voire  dire,  that  he  had  been 
a  freeman  of  the  company,  but  added  that  he  was  then  dis- 
franchised. Lord  Kenyon  ruled,  that  it  was  not  necessary  to 
prove  the  disfrancisement  by  the  regular  entry  in  the  com- 
pany's books,  and  that  the  witness  was  competent.  (2)  And 
in  a  later  case,  on  a  question  of  settlement,  where  the  point  for 
Ihe  consideration  of  the  Couit  of  King's  Bench  was,  whether 
a  witness  produccul  by  the  appellants  could  be  examined,  after 
having  ad(nitted  in  his  examination  on  the  voire  dire,  that  he  was 
the  occupier  of  a  cottage  in  the  appellant  township,  but  that  he 
had  never  been  charged  with  or  paid  any  public  rate  or  lax  in 
that   township,    the    court    held,    that  there   was  no    ground    for 

(1)  Butler    V.  Carver,  2  Slarkie,   N.     Esp.   N.   P.  C.  162.     Botham  v.  Swing- 
P.  C.  434.  ler,  Peake,  N.   P.  C.  218,  1  Esp.    N.  P. 

(2)  Butchers'   Company  v.    Jones,  1     C.  164,  S.  C. 

(2)  See  Note  250,  p.  258.  (a)  See  Note  251,  p.  259.  {b)  Se«  Note  252,  p.  260. 
(c)  See  Note  253,  p.  260.     {d)  See  Note  254,  p.  260. 


moved  on  t'.  d. 


Sect.  8.]  of  an  interested  Witness.  153 

objecting  to  his  testimony,  and  that  it  was  not  necessary  for  the 
appellants  to  produce  the  rate,  in  order  to  negative  the  rating.  (I) 
In  another  case,  where  a  witness  was  objected  to  as  next  of  kin, 
in  an  action  by  an  administrator,  but  on  re-exatnination  answered, 
that  he  liad  released  all  his  interest,  this  was  held  by  Lord  Ellen- 
borough  to  remove  the  objection.  (2)  [d) 

The  objection,  in  the  cases  last  cited,  arose  from  the  examina-  R^emoved  by 
•J  '  '  _  other  evidence, 

tion  on  the  voire  dire,  and  was  removed  also  on  the  voire  dire.   But 

when  the  parly  who  calls  a  witness,  attempts  to  remove  the  ob- 
jection by  otlier  independent  proof,  and  not  on  the  voire  dire,  he 
'will  then  be  subject  to  all  the  general  rules  of  evidence;  and  the 
best  proof  will  be  requisite,  according  to  the  nature  of  the  case. 
Thus,  if  anoilier  witness  is  called,  to  prove  tbat  the  witness,  suppo- 
sed to  be  inlei'ested,  has  been  released;  he  cannot  be  allowed  to 
speak  of  the  contents  of  the  release,  but  the  release  itself,  if  in  ex- 
istence, ought  to  be  produced.  (3)  The  same  lule  has  been  laid 
down  by  Lord  Kenyon  in  another  nisi  prius  case.  (4)  (e) 

Whatever  interest  a  witness  may  have  had,  if  he  is  divested  of  it  Release, 
by  release  (/)  or  payment  [g)  or  any  other  means,  (/i)  when  he  is 
ready  to  be  sworn,  [i)  there  is  no  objection  to  his  competency. 
Thus,  it  is  said  "  to  have  been  solemnly  agreed  by  the  judges,  that 
where  a  person  liad  a  legacy  given  him  and  did  release  it,  he  was 
a  good  witness  to  prove  the  will."  (5)  *  ( j) 

(1)  R.  V.  Gisburn,  15  E.isf,  5.  (5)    Vin.   Ab.    tit.    Evidence,    14,  n. 

(2)  Ingrain  v.  Dade,  Lond.  Silt,  after     53,  cited    by   Lord   Mansfield,    1    Burr. 
Mich.  T.  1817.  423. 

(3)  Corking  v.  Jarrnrd,  1  Campb.  37. 

(4)  Botham  v.  Swingier,  1  Esp.  N.  P. 
C.  164. 


*  Lord  Chancellor  Hardwicke  established  the  will  of  Lord  Ailesbury  on  similar 
proof,  in  the  year  17-18.  (See  1  Burr.  427.)  And  in  Wyndham  v.  ChetW3nd  ( I 
Burr-  414,)  wliere  the  subscribing  witnesses  weie  creditors  of  the  testator,  as  their 
debts  had  been  paid,  they  were  adiniited  lo  prove  the  will.  So  in  Doe  deni.  Hind- 
son  V.  Kersey,  (4  Burn  Ec.  Law,  97,)  ihiee  of  the  ji;df;es  were  of  opinion,  that  a 
subscribing  vviiness  was  restored  to  his  competency,  if  all  his  interest  had  been  releas- 
ed or  exiinguislied  at  the  time  of  the  examination.  Lee  C.  J.  in  Anstey  v.  Dowsing 
(2  Str.  1253,)  and  Ld.  Camden  C.  J.,  in  Doe,  on  the  demi.se  of  Hindson  v.  Kersey, 
were  of  opinion,  that  if  a  subscribing  witness  was  interested  at //le  time  of  ot  teat  a  lion, 
nothing  ex  post  facto  could  give  effect  to  his  attestation.  In  the  former  of  these  cases, 
Justice  Dennison  difiered  from  Lee  C.  J.  on  this  point      (See  1  Burr.  427,  428.) 

((f)  See  Note  25.5,  p.  260.  (e)  See  Note  256,  p.  260.  (/)  See  Note  257,  p.  261. 
(g)  See  Note  258,  p.  264.  {h)  See  Note  259,  p.  264.  li)  See  Note  260,  p.  266. 
(»  See  Note  261,  p.  266. 


134 


Release. 


Of  restoring  the  Competency  [Ch.  5. 


The  interest  which  a  partner  of  either  party  has,   to  enforce  a 
ry,^     "  contract  to  which,  as  a  partner,  he  is  jointly  liable,  or  to  disprove 

the  breach  of  such  contract,  cannot  be  removed  by  a  release  given 
with  a  view  to  the  particular  action.  (I)  (fc) 


Of  all  causes  of 
action. 


A  general  release  of  all  actions  and  causes  of  action,  for  any 
matter  or  thing  which  has  happened  down  to  the  time  of  the  re- 
lease, will  discharge  the  witness  from  all  liability  depending  upon 
the  event  of  the  existing  suit.  Such  a  release  from  a  defendant,  who 
had  dravvn  a  bill  of  exchange,  to  the  witness,  who  accepted  it, 
was  held  to  have  this  effect;  (2)  for,  as  Lord  Ellenborough  said 
in  that  case,  the  transaction  was  already  past,  which  was  to  lay 
the  foundation  of  future  liability;  and  if  the  drawer  should  have 
a  cause  of  action  against  the  acceptor,  it  would  have  reference 
back  to  the  acceptance,  and  would  be  discharged  by  the  release. 
A  similar  point  arose  in  the  case  of  Cartwright  v.  Williams;  (3) 
where  the  defendant  was  the  acceptor,  and  the  witness  was  one 
of  the  drawers,  for  whose  accommodation  the  bill  had  been  ac- 
cepted ;  there  the  witness  was  a  bankrupt,  and  it  was  objected 
that  a  release  from  the  assignees  was  necessary  in  addition  to  the 
general  release,  since  the  defendant,  as  surely,  might  prove  the 
debt  under  the  commission  of  the  witness,  in  case  the  plaintiff 
siiould  recover  in  this  action;  but  Lord  Ellenborougli  held,  and 
the  Court  of  King's  bench  were  afterwards  of  the  satne  opinion, 
that  the  release  in  question,  comfirehending  all  futiu'e  claims  in 
consequence  of  any  cause  existing  at  the  time  of  granting  the  re- 
lease, would  extend  to  bar  any  claim  of  the  defendant  as  surety 
on  the  bill,  his  being  an  inchoate  cause  of  action  then  existing.  (Z) 


By  minor.  j^   an  action   against  a   minor  w'ho  appears  by   his  guardian,  a 

release  by  the  guardian  will  not  be  sufficient,  the  guardian  not 
having  any  authority  to  release.  (4)  (m)      A  release  of  a  bond  debt 

Co-obligee.  by  one  of  several  obligees  will  operate  as  a  release  by  all;(5)  (n)  and 
a  release  to  one  of  several  obligors  will  have  the  same  effect  as  to  all 
the  others,  whether  the  bond  be  joint,  or  joint  and  several.  (6)  (o) 

(1)  Simons  v.  Smiili,  1  Ry.  Mo.  29.  (5)  Bayley  v.  Lloyd,  7  Mod.  250. 

(2)  Scon  V.  Lifford,  1  Campb.  249.  (6)  Co   Lit.  252.  a.  2  Roll.  Ab.    412. 

(3)  Stiirkie,  N.  P.  C.  342.  (G.)  1  Bos.  &  Pul.  630. 
|4)  Fraser    v.   Marsh,   2    Starkie,  N. 

P.  C.  41. 


(/(•)  See  Note  262,  p.  266.  (I)  See  Note  263,  p.  267.     (m)  See  Note  264,  p.  268. 
(n)  See  Note  265,  p.  269.     (o)  See  Note  266,  p.  269. 


Sect.  8.]  of  an  interested  Witness.  135 

On  a  trial  for  forgery,  a  release  from  the  holder  of  a  promissory 


note  to  the  supposed   maker,  in  whose  name  it  was  forged,  (there  In  forgery  and 

111       ultenng. 
beino-   no  other   name  on  the  note,  to  whom  the  maker  could   be 

liable,)  made  him  a  competent  witness  to  prove  the  forgery  of  Maker, 
his  hand-writing,  against  the  prisoner  who  had  passed  it  off  to 
such  holder  without  any  indorsement.  (1)  And  he  will  be  com- 
petent, though  the  note  was  not  payable  to  order  or  to  bearer,  so 
as  to  be  negotiable,  but  simply  to  the  prisoner,  if  the  prisoner  passed 
it  to  the  owner  for  full  value.    (2) 

On   an   indictment   against  the  drawer  of  a    bill,  the  supposed  Acceptor, 
acceptor  is    made  competent   by   a  release  from   the   holder;  in 
case     the    drawer    has   received    value    for    the    bill     from    such 
holder.    (3j 

On  an  indictment  against  the  payee  of  a  bill  for  forging  an 
acceptance,  the  supposed  acceptor  is  made  competent  by  a  release 
from  the  first  indorsee;  though  the  indorsee  advanced  to  the 
payee  only  part  of  the  amount  of  the  bill:  the  indorsee  also  in 
such  case  is  competent.  (4) 

But  the  supposed   indorser  (and    payee)   is  not  rendered   com-  indorser. 
petent   by   a   release    from   the  holder  who   has    not    given  value 
for  it;  for   he  has  no  interest   in  the  bill,  and  the   prisoner  appear- 
ing  the  holder,  a  release  from  any    other   person  would    not   be 
effectual.   (5) 

Where  the  forgery  consists  In  altering  a  genuine   instrument,  so  Drawer, 
as  to  give  it  a  belter  credit,  but  does  not  vary  the  responsibility  of 
the  drawer  or  maker,  the  drawer  or  maker  is  a  competent   witness 
to  prove   the   forgery.      This  has   been    held  in  a  case,   where,  the 
forgery  introduced  a  new  place  for  payment.   (6)  (p) 

A  residuary  legatee  is  not   rendered  a  competent  witness,  in  an  f^pgjju  ^ 
action   by    an  executor  to    recover  a  debt    due  to  the  testator,  by  legatee. 

(1)  Akehurst's  case,  1  Leach,  Cr.  4th  ed.  451,  452.  Russ.  &  Ry  Cr. 
C.  178.     Dr.  Dodd's  case,  ib.    184.  C.  435,  S.  C. 

(2)  See  Akehurst's  case,  supra:  (5)  R.  v.  Young,  Wore.  Lent  Ass. 
and  Bayley  on  Bills,  4th  ed.  451.  1805,  MS.     Russ.    Ry.    Cr.  C.  280.  S. 

(3)  R.  V.  Peacock,  Russ.  Ry.  Cr.  C.     C.  in  note. 

278-  (6)  R.  V.   Treble,  Bayley   on   Bills, 

(4)  R.    V.     Mott,    Bayley   on    Bills,     455. 


(p)  See  Note  267,  p.  269. 


1S6  Of  restoring  the  Competency  [Ch.  5. 

Relense  releasing  all   claim   to   ihe   debt   in   question;   for   if  the   plaintiff 

~  fiiil  in  the  suit,  ahhougii  he  would  not  be  liable  for  costs  to  the  op- 
posite side,  he  must  pay  costs  to  his  own  attorney.  (1)  The  exec- 
utor would  be  eniiiled  to  the  allowance  of  these  costs  out  of  the  es- 
tate, the  action  being  brought  bona  fide;  and  thus  independently, 
of  the  debt  to  be  recovered,  the  residue  would  be  diminished. 
'J'he  witness,  therefore,  has  still  an  interest  to  support  the  action 
and  can  only  be  rendered  competent  by  releasing  the  residue,  or, 
by  release  of  the  costs  of  the  action  from  the  attorney,  [q) 

Member  of  When   a  witness  is  objected   to  as  a  member  of   a  corporation, 

LorporaUon.  •it-  '  i 

whose  mterests  are  questioned,  his  competency  may  be  restored 
either  by  his  resignation,  (which  will  be  effectual  even  by  parol. 
Provided  it  has  been  accepted,  and  another  person  elected  in  his 
place,)  (2),  or  by  disfranchisement.  The  method  of  disfranchise- 
ment is  said  to  be  by  an  information  in  the  nature  of  a  quo  warran- 
to against  the  member,  who  then  confesses  the  information,  and 
upon  that  there  is  judgtiient  of  disfranchisement.  (3)  This  judg- 
ment must  be  n\c\\  as  cannot  be  avoided;  for  if  it  appear  that  the 
witness  can  avoid  the  judgment  for  irregularity,  (as  he  may,  if  he 
has  never  been  summoned,  and  knew  nothing  of  his  disfranchise- 
ment,) he  is  not  competent.  (4)  (r) 

Bail.  The  defendant's  bail  are  not  competent  to  give  evidence  for  their 

principal.  (5)  To  restore  their  competency,  the  defendant  must 
apply  to  the  court,  on  an  affidavit  stating  that  the  bail  will  be  a 
material  witness  for  him,  to  have  bis  name  struck  out  of  the  bail 
piece  on  adding  and  justifying  another  in  his  place.  (6)  (s) 

Release,  when      ^  release  is  in  some  cases  unnecessary,  and   the  witness  though 
unnecessary,     interested  will  be  admitted  without  a  release. 

1     First,  where   the  witness   offers   to   surrender  or  release  his 
1.  Oner  to  '  ,  l*       • 

release.  interest,  and  does  all  in  his  power  to  clear  away    every  objection 

(1)  Baker  V.    Tyrwhitt,  4  Campb.  27.  (4)    Brown    v.    Corp.  of  London,  U 

(2)  11.    V.    Mayor,    &c.  of   Ripon,    2     Mod.  22.5. 

SalU.    432.     Com.     Dig.    tit.    Franchise  (5)   Vide  supra,  p.  59. 

(p   30  )  (6)  Tidd,  Pr.    264.     CoUetty,  JenniS, 

(3)  The   case  of  the  Mayor,  &c.    of  Rep.  temp.  Hard.  133. 
Colchester,  1  P.   Wins.  595,  n. 


(2)  Seo  Note  268,  p.  269.     (r)  See  Note  269,  p.  270.     (s)  See  Note  270,  p.  270. 


Sect.  8.]  of  an  inttrested  Witness.  137 

to  his  testimony,  but  the  other  party  refuses  to  accept  the  release, 
in  that  case  the  evidence  of  the  witness  may  be  received.  (1)  {t) 
Or  if  the  parly,  on  whose  side  the  witness  is  interested  makes  an 
offer  to  remove  all  interest,  and  the  witness  refuses,  that  will  not 
deprive  the   party  of  his  testimony,  (w) 

In  the  case  of  Anstey  v.  Dowsing,  (2)  indeed,  Lee  C.  J.  express-  Legatee. 
ed  an  opinion,  that  a  legatee  was  not  competent  to  prove  the  due 
execution  of  the  will,  although  payment  of  the  legacy  was  tender- 
ed to  him,  which  tender  he  refused.  But  the  ground  of  this  opin- 
ion was,  that,  even,  if  he  had  accepted  the  legacy,  he  still  would 
have  been  incompetent,  as  having  been  interested  at  the  time  of  *^'"®°'- 
attestation;  a  point,  on  which  there  has  been  some  difference  of 
opinion,  but  the  greatest  authorities  are  in  support  of  the  contrary 
proposition,  namely,  that  the  payment  of  the  legacy  would  restore 
the  competency  of  the  witness.    (3) 

If  a  witness  has  acquired  an  interest  in  the  subiect-matter,   for  ^- .^"^.^"^^  ^'^- 
.    .  •'  quired  Iraudu- 

the  mere  purpose  of  depriving  the  party  to  the  suit  of  the   benefit  lently. 

of  his  testimony,  this  ought  not  to  exclude  him  from  giving  evi- 
dence. It  was  ruled  by  Lord  Holt  in  the  case  of  Barlow  v. 
Vowel,  (4)  that  if  a  man  be  a  witness  of  a  wager,  and  afterward? 
bet  himself,  this  shall  not  be  a  reason  to  except  against  his  being  Wager. 
sworn  to  prove  the  wager.  And  from  analogy  to  this  case.  Lord 
Kenyon  and  Mr.  Justice  Ashhurst  were  of  opinion  in  the  case 
of  Bent  V.  Baker,  (5)  (where,  on  the  trial  of  an  action  on  a  pol- 
icy of  insurance,  the  broker  had  been  called  as  vvitness  for  the 
defendant,  but  rejected,  because  he  had  underwritten  the  policy 
after  the  defendant,)  that  even  if  it  were  true  in  general,  that  one 
underwriter  could  not  be  a  witness  for  another,  yet  the  witness 
ought  to  have  been  admitted  in  that  case,  as  the  defendant  had 
acquired  an  interest  in  his  testimony  before  the  witness  had 
signed  the  policy.  And  they  laid  down  as  a  general  principle, 
deducible  from  the  case  of  Barlow  v.  Vowel,  that  where  a  per- 
son makes  himself  a  party  in  interest  after  a  plaintiff  or   defendant 

(1)  Goodtille  dem.    Fowler   v.     Wei-  (4)    Skin.     5S6.       See     Rescous  v. 
ford,  1  Doug.  139.     3  T.  R.  35.  Williams,  3  Lev.  152,  nnd  Covvp   736. 

(2)  2  Str.  1253.  Vide  supra,  p.  133,  n.  (5)  3  T.  R.  27.     Vide  supra,  p.  4S. 

(3)  Vide  Supra,  p.  133,  n. 


C/)  See  Note  271,  p.  272.     («)  Sae  Note  272,  p-  272^ 

Vol.  L  18 


138 


Of  restoring  the  Competency 


[Ch.  b. 


has  an  interest  in  his  testimony,  he  may   not  by  this  deprive  the 
plaintiff  or  defendant  of  his  testimony. 

Interest  acqni-  However,  it  appears  to  be  rather  doubtful,  whether  this  pro- 
red  since  cause  ...  ,  .  ,  ,  ,  mi  • 
©faction.  position  IS  not  expressed  in  too  large  and  general  terms.  1  he  in- 
competency of  a  witness,  on  account  of  interest,  must  depend  rath_ 
er  on  the  nature  of  the  interest,  than  upon  the  time  of  acquiring  it. 
The  quefjtion  on  the  voire  dire  is,  whether  he  is  interested  at  the 
time  of  his  examination.  If  he  is  directly  interested  at  that  lime, 
he  is  not  a  competent  witness  in  general  without  a  release,  and  it 
seems  to  be  no  answer  to  the  objection,  to  show  that  he  has  become 
interested  only  since  the  commencement  of  the  action,  or  since  the 
time  of  his  being  acquainted  with  the  fact,  which  he  is  called  to 
prove.  If,  for  example,  tiie  question  is  on  a  customary  right  of 
common,  a  witness  will  be  incompetent,  who  admits  upon  the  vo-iro 
dire,  that  he  is  in  the  occupation  of  a  messuage,  and  that  he  claims 
a  similar  right  of  common  as  annexed  to  his  tenement;  and  it  can- 
not be  material,  whether  he  has  been  in  possession  for  a  number  of 
years,  or  had  the  tenement  only  just  before  the  trial  of  the  cause. 
In  either  case  he  appears  to  be  equally  incompetent:  yet  in  the 
latter  it  may  be  said,  that  he  acquired  his  interest,  after  the  party 
had  become  interested  in  his  testimony.  The  case  of  Barlow  v. 
Vowel  must  be  considered  as  having  determined  on  the  grourvd 
of  fraud:  the  witness,  proposed  to  be  examined,  was  the  original 
witness  of  the  wager;  it  was  a  fraud,  therefore,  to  deprive  the  par- 
ty of  the  benefit  of  his  testimony.  (1) 


Underwriter 
having  paid. 


In  the  late  case  of  Forester  v.  Pigou,  (2)  where  the  defendant 
in  an  action  on  a  policy  of  insurance,  called  another  under- 
writer to  prove  the  policy  void  on  account  of  a  misrepresen- 
tation of  the  nature  of  the  risk,  and  upon  the  voire  dire 
the  witness  stated,  "  that  he  had  paid  the  loss  to  the  plaintiff, 
upon  an  understanding  that  he  was  to  be  repaid  in  the  event  of 
this  action  failing,  and  that  he  had  since  received  a  letter  from 
the  plaintiff  promising  to  return  the  money  in  that  event,"  an 
objection    was   taken  to  his   competency,  on   the   ground    of  his 

(1)    By    Lord    Ellenborougli    in    Fo-         (2)    3  Csmpb.    38(K       I     Maul©   & 
tester  v.  Pigou,  1  Msiule  &  Selw.    9,    in     Selvv.  9,  S.  C. 
which  ibis  caae  was  much  cited. 


Sect.  8.]  of  an  interested  Witness.  139 

being  interested  in  the  event;  the  point  was  argued  on  the  other 
side  upon  the  authority  of  Barlow  v.  Vowel,  and  it  was  said, 
the  witness  had  not  become  interested  nntil  after  the  commence- 
ment of  the  action,  and  that  the  plaintiff  ought  not  to  be  allowed 
to  defeat  by  his  own  act  the  interest  which  the  defendant  had  in 
the  witness'  testimony;  but  the  witness  was  considered  to  be 
incompetent  and  rejected:  for  although  the  witness  would  not  be 
disqualified  by  any  agreement  fraudulently  entered  into  between 
him  and  the  plaintiff  for  the  purpose  of  taking  off  his  testimony, 
yet  on  the  other  hand  the  pendency  of  a  suit  could  not  prevent 
third  persons  from  transacting  business  bona  fide  with  one  of  the 
parlies;  and  if  an  interest  in  the  event  of  the  suit  is  thereby 
acquired,  the  general  consequence  of  law  must  follow,  that  the 
person  so  interested  cannot  be  ^examined  as  a  witness  for  that 
party,  from  whose  success  he  will  necessarily  derive  an  advantage. 
A  motion  was  afterwards  made  for  a  new  trial,  on  account  of 
the  rejection  of  this  witness,  as  well  as  of  another  also,  who  was 
similarly  situated;  and  a  new  trial  was  granted  for  the  purpose 
of  ascertaining  more  particularly  the  precise  time,  when  the 
undertaking  was  made  to  the  witnesses;  but  the  court  added, 
that,  if  a  person,  who  is  under  no  obligation  to  become  a  witness 
for  either  of  the  parties  to  a  suit,  choose  to  pay  his  debt  before- 
hand, upon  a  condition  that  is  to  be  determined  by  the  event  of 
the  suit,  he  becomes  as  much  interested  in  the  event,  as  if  he  were 
a  party  to  a  consolidation  rule,  (r) 

Lord  Raymond,  in  the  case  of  the   Kins;  v.  Fox,  f  I)  admitted  ^'^^g^'"' <"> 
•'  '  3  '  \    /  conviction. 

the  prosecutor  to  be  a  witness,  although  he  had  laid  a  wager, 
that  he  should  convict  the  defendant:  and  the  true  reason  seems 
to  be,  not  because  the  witness  had  made  the  wager  at  a  lime 
when  public  justice  became  interested  in  his  testimony,  but  be- 
cause it  would  be  against  public  policy  to  allow  a  witness  by  any 
such  gratuitous  act  to  exclude  himself  from  giving  evidence. 
In  addition  to  this,  it  may  be  observed,  that  the  wager  would 
now  probably  be  considered  absolutely  void,  on  a  principle  of  pub- 
lic, policy,  as  tending  to  produce  an  improper  bias  on  the  mind  of 
the  witness,  and  therefore  as  directly  prejudicial  to  the  administra- 
tion of  justice. 

(1)   1  Sir.  652. 
(t>)  See  Note  273,  p.  272. 


S.  Witness 
indifferent. 


140  Of  the  Admissibility  of  Counsel  or  Solicitor.   [Ch.  6. 

3.  When  the  witness  must  be  answerable  to  one  or  the  other 
of  the  parties,  and  the  event  of  the  suit  determines  only  to 
which,  he  may  be  examined  by  either  of  them  without  a  release. 
Thus,  in  an  action  of  assumpsit  for  money  paid  to  the  use  of 
the  defendants,  who  were  ship-owners,  Lord  Kenyon  admitted 
the  captain  to  prove,  that  he  had  received  the  money  from  the 
plaintiff  for  the  defendant's  use;  for  he  stood  indifferent  between 
the  parties,  and  he  was  equally  answerable,  whichever  way  the 
verdict  might  go.  (1)  {w) 

(1)  Evans  v.  Williams,  7  T.  R.  481,  n.  (c.J 


CHAP.    VL 

Of  the  Admissibility  of  Counsel  or   Solicitor. 

The  objections  to  the  competency  of  a  witness,  which  have 
been  considered  in  the  four  preceding  chapters,  are  of  a  nature  to 
exclude  him  from  giving  any  kind  of  evidence.  One  other  objec- 
tion still  remains  to  be  considered:  not  an  objection  to  his  general 
competency,  but  to  particular  evidence,  which  he  may  be  called 
upon  to  disclose.  This  is  founded  on  the  professional  confidence, 
which  a  client  reposes  in  his  counsel,  attorney,  or  solicitor,  and 
which  courts  of  justice  ever  bold  to  be  iiiviolable.  (2) 

Geueral  rule.  Confidential  communiontions  between  attorney  and  client  are 
not  to  be  revealed  at  any  period  of  time;  (x)  not  in  an  action 
between  third  persons — nor  after  the  proceeding,  to  which  they 
referred,  is  at  an  end — nor  after  the  dismissal  of  the  attor- 
ney. (3)  The  privilege  of  not  being  examined  to  such  points, 
as  have  been  communicated  to  the  attorney  while  engaged  in 
his  professional  capacity,  is  the  privilege  of  the  client,  not  of 
the    attorney;    and   it   never    ceases,  (y)     "    It  is   not   sufficient 

(2)   Lord     Say     and     Seaie's     case,  (3)  Wilson  v.  Ratstall,  4  T.  T.    759, 

10  Mod.   40.     Bull.  N.    P.    284.     Cuts  760.       Slotnan  v.  Heme,  2  Esq.    N.    P. 

V.     Pickering,     I     Ventr.     197.       The  C.    695.       R.   v.    Withers,   2     Campb. 

reader    may     see    some   very    judicious  578.  Gainsford  v.  Grammar,    2    Campb. 

observations  on  this  subject   in  Burnet's  10.       Parkhurst  v.   Lowten,    2    Swanst. 

Treatise  on  the    Criminal    Law  of  Scot-  197 — 221. 
land,  p.   435—438. 


(lo)  See  Note  277,  p.  275.   (x)  ,See  Note  275,  p.  275.     (y)  See  Note  276,  p.  27  6. 


Ch.  6.]     Of  the  Admissibility  of  Counsel  of  Solictor.  141 

to  say,  the  cause  is  at  an  end;  the  mouth  of  such  a    person  is 
shut  forever."  (1) 

If  the  client  waive  his  privilege,  the  attorney  may  be  examined.  Pri^iieg* 
In  an  action  by  the  assignees  of  a  bankrupt,  communications,  made 
by  him  to  his  attorney  before  his  bankruptcy,  were  admitted  in  evi- 
dence, the  bankrupt  himself  being  present  and  consenting.  (2)  (2) 

An  attorney  will  not  be  allowed  to   produce  a  deed  which  has  Deedorwrit- 
,  .  .  •   11     •     1  •  c      •  ing  deposited. 

been  deposited  with  him  confidentially  in  his  professional  charac- 
ter: and  if  the  deed  has  been  obtained  out  of  his  hands,  for  the 
purpose  of  being  produced  in  evidence  by  another  witness,  it  can- 
not be  received.  Thus  in  a  case,  tried  before  Mr.  Justice  Bayley, 
(3)  the  plaintiff's  counsel  having  proved  a  certain  deed  in  the  pos- 
session of  the  defendant,  and  the  defendant  refusing  to  produce  it, 
though  he  admitted  having  received  notice,  the  counsel  for  the 
plaintiff  offered  in  evidence  a  copy  of  the  deed,  which  had  been 
obtained  from  one  who  acted  many  years  ago  as  attorney  for  the 
person,  under  whom  the  defendant  claimed,  and  who  had  been 
entrusted  by  him  with  the  original  deed  in  his  professional  charac- 
ter. The  counsel  on  the  part  of  the  defendant  objected,  that  this 
evidence  ought  not  to  be  received,  as  the  original  deed  had  been 
deposited  confidentially  with  the  attorney;  and  Mr.  Justice  Bay- 
ley  refused  to  admit  it.  He  said,  "  The  attorney  could  not  give 
parol  evidence  of  the  contents  of  the  deed,  which  had  been  entrust- 
ed to  him;  so  neither  could  he  furnish  a  copy.  He  ought  not  to 
have  communicated  to  others  what  was  deposited  with  him  in  con- 
fidence, whether  it  was  a  writing  or  a  verbal  communication.  It 
is  the  privilege  of  his  client,  and  continues  from  first  to  last. 

As  a  witness  cannot  be  bound  to  produce  his  title  deeds  to  an  j,,  cause  be- 

estate,  so   neither  can   his  solicitor   produce  them,  in  a  cause   be-  ^ween  third 

...  TT  1  •      •    1     •      7        1  persons, 

tween  third   persons.      Upon  the  same  principle  it   has  been  held, 

that  a   solicitor  of  one  of  the  parties   to  a   deed   of  composition, 

between  a   company  of  water-works   and   their  creditors,  is  not 

compellable  to  produce  it;  he  demurred  to  the  production,  con- 

(l')  By  Duller  J.  4  T.  R.  759.  Ass.  1809.     Brard  v.  Ackermati,  5Esp. 

(2)  Merle  v.  Moore,  Ry.  Mu.  390.  N.  P.  C.  119.     See  Copeland  v.  Watts, 

(3)  Fisher    v.    Heming,  Leic.   Lent     1  Starkie,  N.  P.  C.  95. 


(z)  See  Note  277.  p.  276. 


142  Of  the  Admissibilitij  of  Counsel  or  Solicitor.     [Cli.  6. 

ceiving  that  it  might  prejudice  his  client.  (1)  And  a  soHcitor  to 
assignees  of  a  bankrupt  is  not  compellable  to  produce  the  proceed- 
ings under  the  commission,  the  assignees  having  a  cause  pending 
against  the  defendant,  which  might  be  prejudiced  by  a  disclosure, 
though  not  connected  immediately  with  the  cause  on  trial.  (2)  A 
retainer  to  counsel  for  a  cause  is  strictly  a  privileged  communica- 
tion. (3)  (a) 

cutions.  The   following  instance,   which  occurred  before  Mr.    Justice 

Holroyd,  (4)  shews,  how  strictly  the  obligation  of  secrecy  is 
enforced,  between  attorney  and  client,  even  in  a  case  where  the 
interests  of  criminal  justice  were  concerned.  In  a  prosecu- 
tion for  the  forgery  of  a  promissory  note,  an  attorney,  who  had 
the  note  in  his  possession,  refused  to  produce  it  before  the  clerk 
of  arraigns,  who  required  it  for  tlie  purpose  of  setting  it  out  in 
the  indictment:  upon  which,  he  was  summoned  to  appear  before 
the  judge,  and  show  cause  why  he  should  not  produce  the  note. 
He  accordingly  attended,  together  with  counsel  for  the  prose- 
cution, and  counsel  for  the  prisoner.  Mr.  Justice  Holroyd  in- 
quired minutely  into  the  circumstances,  by  which  he  had  the 
note  in  his  possession;  when,  it  appeared,  on  the  statement  of 
the  attorney,  that  he  had  been  consulted  by  the  prisoner  on  the 
note  in  question,  and  that  by  his  direction  he  had  commenced 
an  action,  to  recover  the  amount  of  the  note,  against  the  person 
in  whose  name  it  was  now  supposed  to  be  forged:  that  a  short 
time  afterwards,  he  had  been  summoned  before  a  magistrate, 
when  the  prisoner  was  apprehended  on  a  charge  of  forgery,  and 
he  was  then  desired  to  produce  the  note:  upon  this,  he  inquir- 
ed of  the  prisoner,  who  was  present,  whether  he  would  consent 
to  its  being  produced:  the  prisoner  consented,  asserting  his 
innocence,  and  the  note  was  accordingly  produced.  The  magis- 
trate, after  taking  the  depositions  of  witnesses,  remarked,  that 
he  thought  it  would  be  proper  to  deposite  the  note  in  the 
hands  of  the  high  constable:  on  which  the  attorney  said,  that 
as  the  note  had  come  into  his  hands  professionally  from  his  client 
he  expected  to  have  it  restored  to  him,  at  the  same  time  asking 

(1)  Norris  v.    Hill,  8  Stark.  N.  P.  C.  (3)   Foote  v.  Haynes,  1  Rj.  Mo.  165. 
140.  (4)  R.   V.   Smith,    Derby  Sam.    Ass. 

(2)  Laingv.  Barclay,  3  Stark.  i\.  P.  1822.     In  support  of  this  decision,  See 
C.  42.  R.  V.  Dixon,  3  Burr.  1687- 

(o)  See  Note  278,  p-  276, 


Ch.  6.]   Of  the  Admissibility  of  Counsel  or  Solicitor.  1-^3 

the  prisoner,  whether  he  would  consent  to  its  being  deposited  with 
the  high  constable,  and  the  prisoner  replied,  he  wished  it  to  be 
placed  in  the  hands  of  his  attorney.  The  magistrate  returned 
the  note  to  the  attorney,  observing,  that  he  would  doubtless  have 
notice  to  produce  it  at  the  trial.  The  attorney  (who  was  not, 
however,  en) ployed  professionally  for  the  prisoner  in  the  ensuing 
trial,)  had  been  subpoenaed  to  produce  the  note,  which  was  still 
in  his  possession:  but,  before  he  was  subposnaed,  a  demand  of  the 
note  had  been  made  upon  him  by  llie  attorney  now  employed  in 
the  prisoner's  defence.  On  these  facts  the  question  was  argued 
by  the  counsel  for  the  prosecution,  and  the  counsel  for  the  prison- 
er; and  Mr.  Justice  Holroyd  said,  he  would  consider  the  point. 
On  the  following  day  the  subject  was  again  mentioned,  when  Mr. 
Justice  Holroyd  refused  to  make  an  order  upon  the  attorney  to 
produce  the  note,  or  to  give  a  copy  of  it,  to  the  clerk  of  arraigns.  A 
bill,  charging  the  prisoner  with  forgery,  was  prepared,  and  found 
by  the  grand  jury.  At  the  trial,  the  same  attorney  was  called,  on 
the  part  of  the  prosecution,  for  the  purpose  of  producing  the  note; 
and  on  his  re-stating  the  facts  above  detailed,  the  learned  judge 
declared  his  opinion,  that  he  ought  not  to  produce  it.  Secondary 
evidence  of  its  contents  was  not  offered;  the  prosecution  conse- 
quently failed;  and  the  prisoner  Vv-as  acquitted.  (6) 

This  privilege  of  the  client  has  not  been  confined  to  those  cases  Extent  orrnle. 
only  where  the  attorney  has  been  employed  about  a  suit  or  cause, 
but  has  been  extended  to  all  such  communications  as  were  made 
to  him  in  his  professional  character,  and  with  reference  to  profes- 
sional business.  Thus,  if  an  attorney  were  professionally  employ- 
ed to  make  a  draft  of  an  assignment  of  goods,  which,  however,  he 
declined  to  make,  it  has  been  held  that  he  would  not  be  allowed 
to  disclose  that  circumstance,  in  case  a  question  should  arise, 
whether  an  assignment,  subsequently  drawn  by  another  attorney, 
was   fraudulent:  (I)  and  if  he  were  to  be  consulted  on  the  title  to 

(1)   Cromack    v.    Heaihcote,  2    Brod.  ted  for  the  purpose  of  bringing  nn  nction 

&    Bing.  4.     4    J.    B.    Moore,    .357,    S.  or  suit,  or  relating  to  a    cause  (.r  suit  cx- 

C    GMinsford    v.    Grarnni;ir,  2    Cainpb.  isiing    at    the    time   of  the    conirnunica- 

9.     But   see    Wadswoitli   v.    Hatiishiiw.  tioii,     is    confidential     and     privileged  ; 

2  Brod.    &  Bing.    5,  in    note,  and    VVil-  but  what    an    attorney    learns    oiherwi.so 

lianis    V.    Mundie,    1   Ry.    &     Mo     34,  than  fur  the   purpose  of  a  cause  or   suit, 

where     Abbott,    C     J.    laid    down    the  he  is  bound  to  communicate.     Aud  see  2 

rule   to   be,    that   what   is   comniunica-  Barn.  &  Cress.  749. 


(6)  See  Note  279,  p.  276. 


144  Of  the  Admissibility  of  Counsel  or  Solicitor.   [Ch.  6. 

an  estate,  that  he  would  not  be  allowed  to  disclose  any  information 

thus  communicated  to  him,  to  the  prejudice  of  his  client.  (1)  (c) 

Interpreter.  A  person  who  acts  as  interpreter,  (2)  or  agent,  (3)  between  an 

attorney  and   his  client,  stands  precisely  in   the  same   situation  as 

Agent.  j^g  attorney    himself ;  he  is   considered  as  the  organ  of  the  attor- 

ney, and  is  under  the  same  conditions  of  secrecy,  {d)  But  it  has 
been  ruled  at  Nisi  Prius,  that  a  person  who  was  consulted  confi- 
dentially on  the  supposition  of  his  being  an  attorney,  when  in  fact 
he  was  not  one,  is  compellable  to  answer.  (4) 

Rule  confined       This    professional   privilege   extends   to   the  three    enumerated 

to  professional  c  i  i-    •  i  i  •      •  r-        i 

advisers.  cases  01  counsel,   solicitor,   and   attorney  ;  but  it   is  conhned   to 

those  cases  alone.  (5)  There  are,  indeed,  cases,  said  Mr.  Jus- 
tice Buller,  in  the  case  of  Wilson  v.  Raslall,  to  which  it  is  much 
to  be  lamented  that  the  law  of  privilege  is  not  extended;  those, 
in  which  medical  persons  are  obliged  to  disclose  the  information, 
which  they  have  acquired  by  attending  in  their  professional  char- 
acters. (6)  This  point  was  much  considered  in  the  Duchess 
of  Kingston's  case,  where  Sir  C.  Hawkins,  ^v•ho  had  attended  the 
duchess  as  a  medical  man,  was  compelled  to  disclose  what  had 
been  committed  to  him  in  confidence.  (7)  Lord  Kenyon  in  the 
same  case  of  Wilson  v.  Rastall,  observed,  "If  a  friend  could  not 
reveal  what  was  imparted  to  hiin  in  confidence,  what  is  to  be- 
come of  many  cases,  even  affecting  life,  for  instance  Doctor  Rat- 
cliff's  case.''  (8)  And  if  the  privilege,  now  claimed,  extended 
to  all  cases  and  persons,  Lord  W.  Russel  died  by  the  liands  of 
an  assassin,  and  not  by  the  hands  of  the  law;  for  his  friend  Lord 
Howard  was  permitted  to  give  evidence  of  confidential  conver- 
sations between  them.  (9)      All   good  men,    indeed,    thought  that 

(1)  2  Brod.    &  Bing    6,    by  Richard-         (4)  Fountain  v.  Young,    6  Esp.  N.  P. 
son,  J.  C.  113. 

(2)  Du    Barre     v.    Livette,     Peake,  (5)  4  T.   R.    758,  Vaillant    v    Dode- 
N.  P.    C.  78,    cited    by    Lord    Kenyon,     mead,  2  Alk.  524.     2  Svvanst.  221. 

4  T.  R.  756.  (6)   4    T.    R.    759.     See  also    R.    v. 

(3)  Parkins  v.    Hawksliaw,    2  Stark.     Sparkes,  cited  in  Peake, N.  P.  C.  77,  Du 
N.  P.  C.    239      In  this    case    the    agent     Barre  v.   Llvelte. 

for   the   defendant's    attorney    was    pro-  (7)  20  Howell's  St  Tr.  613,  614. 

posed  to  be  examined    as  to  communica-  (S)   9  St.  Tr.  582,  fol.    ed.  S.    C.      19 

tions  which  he  had    with  the  defendant,  Howell's  St.  Tr.  428. 

for  the  purpose  of  proving  1  he  identity  of         (9)   3    St.  Tr.    715,  fol.  ed.    S.  C.     9 

the  party  in  an  action  on  a  bond,  -but  re-  Howell's  St.  Tr.  599. 

jectcd  by  Holroyd,  J. 


(c)  See  Note  280,  p.  277.     {d)  See  Note  281,  p-  273. 


Ch.  6.]     Of  the  Admissibility  of  Counsel  or  Solicitor.  145 

he  should  have  gone  ahnost  all  lengths  rather  than  have  betrayed 
that  confidence;  but  still,  if  the  privilege  had  extended  to  such  a 
case,  it  was  the  business  of  the  court  to  interfere,  and  prevent  the 
evidence  being  given. 

In  a  case  at  Nisi  Prius,    where  a  clerk  to  the  commissioners  of  Clerk  to  com- 
ihe  property-tax  was  called  to  prove  the  defendant  a  collector,  and  ""s^"^^^''*-      ^ 
refused  to  give   evidence,   on   the   ground   of,  his  having  taken  an 
oath  of  office  not  to  disclose   what   he  should   learn   as   clerk  re- 
specting the  property-tax,  except  with  the  consent  of  the  commis- 
sioners, or  by  force  of  an  act    of  parliament,   the  court  held,  that  Oath  of  office 
this  oath  would  not  exempt  the  witness,    and   that  it  must  be  con- 
strued, as  containing  an  implied  exception    of  the  evidence,  which 
he  might  be  called  to  give  in  courts  of  justice,  in  obedience  to  the^ 
writ  of  subpoena.  (1)        In   an    early  case,  (2)  indeed   where  the 
defendant  pleaded,    to   an   action  of  debt  on   a  bond,  the  statute 
against  buying  and  selling  of  offices,   and    called  a  witness  to  show 
on  what  occasion  the  bond  was  given,  Lord   Holt  is  said  to  have 
refused  his  evidence,  because   it  appeared,   that   he  was  privately 
intrusted  to  make  the  bargain,  and  keep  it  secret.     But  the  prin- 
ciple and  authority  of  this   case  seem  to   have  been  overruled  by 
that  of  Wilson   v.  Rastall,   and   the  latter  decisions  on  this  sub- 
ject, (e) 

A  person,  by  profession   an  attorney,    but  not  employed  as  at-  Attorney  not 
lorney  in  the  particular  business,  which  is   the  subject  of  inquiry,  g^^^"-'' 
is  not  within  the  rule,  although  he  may  have    been  consulted  confi- 
dentially. (3)  (/) 

Pfopositioss,  which  the  attorney  of  one  party  has   been  profes-  Terms  offered 

II  11  1  II  ,        f.    .     1       before  third 

sionaily  employed   to  make  to  the  adverse  party,  and  winch  he  persoo. 
made  in  the  presence  of  a  third    person,  though  they  are  not  to  be 
disclosed  by  the  attorney  himself,  may  yet  be   proved  by  the  per- 
son, who  heard  him  deliver  them.  (4)  (g) 

The  attorney  of  a  party  in  the  cause  may  be  examined,  like  Attorney  ex- 
aminable, to 

(1)  Lee   q.    t.    V.    Birrel,    3   Campb.         (3)  Wilson    v.    Rastall,  4  T.  R.  ToS,    ^^'^''"• 
837.  760. 

(2)  Ball.  N.  P.  234.  (4)  Gainsford  v.  Grammar,  2  Campb. 

10. 


(fi)  See  Note  232,  p.  278.     (/  )  See  Note  2S3,  p.  2S0.     (§■)  Sea  Note  2S4,  p.  231. 

Vol.  I.  19 


146 


Of  the  Admissibility  of  Counsel  or  Solicitor.     [Ch.  6. 


Execution. 
Erasure. 


Swearing. 


Notice. 


Usnrj. 


any  other  witness,  as  to  a  fact  which  he  knew  before  the  retainer, 
that  is,  before  he  was  addressed  in  his    professional  character;  (1) 
or,  where  he  has  made  himself  a  party  to  the  transaction;  (2)    or, 
where  he  is  questioned  to  a  collateral   fact  within  his   own   know- 
ledge, or  to  a  fact  which  he  might  have  known  without  being  in- 
trusted as  attorney  in  the  cause.   (3)  (/i)     Thus,  if  he  is  a  sub- 
scribing witness  to  a  deed,  he  may  be  examined  Concerning  the 
execution.  (4)  (i)     .Or,  if  there  be  a  question  about  an  erasure  in  a 
deed  or  will,  he  may  be  asked,  whether  he  had   ever  seen  the  in- 
strument in  any  other  state,  for  it  is   a   fact  within  his  own  know- 
ledge ;  but  he  ought  not   to  be  permitted   to   disclose  any  confes- 
sions, which  his  client  may  have   made  to  him  on  the  subject.  (5) 
Or,  if  an  attorney  were   present,   when  his  client  was  sworn  to  an 
answer  in  chancery,  he  might  be  a  witness,   on  an  indictment  for 
perjury,  to  prove  the  fact  of  taking  the  oath,  which  is   a  fact  not 
peculiarly  within  his  knowledge  as  an  attorney,  and  not  commit- 
ted to  him  in  secrecy.  (6)      So,  the  attorney  of  one  of  the  parties 
may  be  examined  as  to  the  contents  of  a  written  notice,  which  had 
been  received  by  him  in  the  course  of  the  cause,  requiring  him  to 
produce  papers.  (7)  (J) 


On  the  same  principle,  in  an  action  of  debt  upon  a  bond,  the 
plaintiff's  attorney  was  admitted  by  Lord  Kenyon  to  prove,  that 
the  bond  had  been  given  on  an  usurious  consideration.  (8)  .  And 
where  a  person  (who  had  brought  an  action  on  a  promissory 
note,  which  was  afterwards  compromised  by  the  defendant,)  had 
Consideratbn.  informed  the  attorney  after  the  compromise,  that  there  never  had 
been  any  consideration  for  the  note,  the  Court  of  King's  Bench 
held,  that  the  attorney  was  compellable  to  disclose  that  circum- 
stance, in  an  action  brought  to  recover  back  the  money.  (9) 
The  communication,  said   Lord   Kenyon,   was  not  here  made  in 

(1)  Cuts  V.  Pickering,  1  Vent.  197.  (4)  Doe  dem.  Jupp  v.  Andrews, 
Lord  Say  and  Seale's  case,  10  Mod.  Covvp.  846.  Rohson  v.  Kemp,  4  Esp. 
40;  S.  C.  Bull.  N.  P.  284.   4T.  R.  759.  N.  P.  C.  2.35;    5  Esp  N.  P.  C.  53. 

(2)  Duffin  V.  Sniilii,  Peake,  N.  P.  C.  (5)  Bull.  N.  P.  284.  1  Venlr.  197. 
108.  Robson  v.  Kemp,  5  Esp.  N.  P.  C.  (6)  Bull.  N.  P.  2S4.  By  Lord  Mans- 
52.     Cowp.  845.  field,  C.  J.  in  Cowp.  846. 

(3)  Bull.  N  P.  384.  By  Lord  Mans-  (7)  Spenceley  v.  Schnlienberg,  7 
field,  C.    J.    in    Duchess    of  Kingston's  East.  357. 

case,   11    St.    Tr.    253,  fol.    ed.    S.    C.  (8)  Duffin    v.    Smiih,    Peake,   N.    P. 

20   Howell's   St.  Tr.    612.      And    See  C.  108. 

Parkins     v.     Hawkshaw,   stated     anto,  (9)  Cobden   v.    Kendrick,    4   T.    R. 

p.  144.  432. 


(A)  See  Note  286,  p.  281.     (i)  See  Note  286,  p.  281.     (;)  See  Note  287,  p.  28L 


Ch.  6.]  Of  the  Admissibility  of  Counsel  or  Solicitor.  147 

contemplation  of  a  suit;  on  the  contrary,  the  purpose  in  view  had 
been  already  obtained;  and  what  was  said  by  the  client  was  from 
exultation,  in  having  before  deceived  his  attorney  as  well  as  his 
adversary. 

Communications  which  a  person  has  had  with  an  attorney,   re-  Opinion  as  to 

r  ,  .  ,.  ,  ,  .     ,     .  ,  ,  matter  of  fact, 

spectuig  a  meeting  ot  his  creditors,  and  as  to  his  being  able  to  at- 
tend without  being  arrested  for  debt,  are  not  privileged.  (1)  "  A 
question  for  legal  advice,"  said  Abbott  C.  J.,  "  may  come  within 
the  description  of  a  confidental  communication,  because  it  is  part 
of  the  attorney's  duty,  as  attorney,  to  give  legal  advice;  but  a 
question  for  information  as  to  matter  of  fact,  as  to  a  communication 
the  attorney  has  made  to  others,  where  the  communication  might 
have  been  made  by  any  other  person  as  well  as  an  attorney,  and 
where  the  character  or  office  of  attorney  has  not  been  called  into 
action,  has  never  been  held  within  the  protection,  and  is  not  with- 
in the  principle  upon  which  the  privilege  is  founded. "(fc) 


If  the  attorney  of  one  of  the  parties  to  the  suit  is  examined  as  ^^^^  "'^  .'" 
a  witness  for  his  client,  the  counsel  on  the  other  side  may  cross-  ation. 
examine  him  as  to  the  same  matter,  but  not  as  to  any  other  points 
of  the  cause;  (2)  on  all  such  points  the  privilege  of  the  client  seals 
his  lips. 


After   taking  a  view  of  the   law  of  England,    it  may  not  be  ^"'®^  0*^^°- 

1  1  1         ^     .       ^       Kian  law. 

thought  uninteresting  to  mention,  what  was  the  rule  of  the  Ro- 
man law,  respecting  the  disqualification  of  witnesses.  The  prin- 
cipal rules  were  the  following: — "  Admittendi  non  sunt  ad  testi- 
monii  fidem,  qui  impuberes  erunt:  qui  judicio  publico  damnati 
erunt,  et  qui  eorum  in  integrum  restitutiis  non  erii:  quive  in  vin- 
culis,  cutodiave  publica  erit.  Adulterii,  aut  repetundarum  damna- 
tus,  et  ob  testimonium  dicendum  damnatus  vel  non  dicendum,  ad 
testimonium  non  adhiberi  potest. — Nullus  idoneus  testis  in  re 
sua  intelligitur. — Testis  idoneus  pater  filio,  aut  filius  patri,  non 
est. — Lege  Julia  cavetur,  ne  invito  denuntietur,  ut  testimonium 
litis  dicat  adversus    socerum,   generum    vilricum,    privignum,   so- 

(1)  Bramwick  v.    Lscas,  2   Barn.    &         (2)   Valliant  v.    Dodemead,   2    Atk. 
Cress.  744.  524. 

r 


{k)  See  Note  28S,  p.  2S1. 


148  Of  the  principal  general  Rules  of  Evidence.   [Ch.  7. 

brinum,  sobrium,  sobrino  natum,  eosve  qui  priore  gradu  sunt. — 
Idonei  non  videntur  esse  testes,  quibiis  imperari  potest,  ut  testes 
fianl:  donieslici  testimonii  fides  improbatur. — Uniiis  omnimodo 
testis  responsio  non  audiatiir,  etiamsi  prfficlara}  curitE  bonore  ful- 
geat. — Testes,  qui  adversus  fidem  suaiu  tcstationis  vacillant,  audi- 
endi  non  sunt.  (1) 

The  Roman  law  will  appear,  in  the  foregoing  regulations,  to 
have  been  too  narrow  and  restrictive  on  the  question  of  incom- 
petency. Its  maxims  were  much  wiser  on  the  subject  of  the 
credibilily  o(  whnesses:  "  Testium  fidf?s  (says  the  Digest,)  dili- 
genter  examinanda  est.  Ideoque  in  persona  eorum  exploranda 
imprimis  conditio  cujusque:  utrum  quis  decurio  an  plebius  sit: 
et  an  bonestse  et  inculpate  vitse,  an  vero  notatus  quis  et  repre- 
hensibilis:  an  locuples  vel  egens  sit,  ut  lucri  causa  quid  facile 
admiltat:  vel  an  inimicus  ei  sit,  adversus  quern  testimonium  fert: 
vel  amicus  ei  sit,  pro  quo  testimonium  dat.  Nam  si  careat  sus- 
picione  testimonium  vel  propter  personam,  a  qua  fertur,  quod 
honesta  sit — vel  propter  causam,  quod  neque  lucri,  neque  gratiae, 
neque  inimicitise  causa  sit — admittendus  est.  Ideoque  Divus 
Hadrianus  Vivio  Varo  legato  provincise  Ciliciae  rescripsit,  eum 
qui  judical  magis  posse  scire,  quanta  fides  hadenda  sit  testibus. 
Verba  epistolae  heec  sunt.  Tu  magis  scire  potes,  quanta  fides 
babenda  sit  testibus:  qui,  et  cujus  dignitatis,  et  cujus  sestimationis 
sint:  et  qui  simpliciter  visi  sint  dicere,  utrum  unum  eundernque 
meditatum  sermonem  attulerint,  an  ad  ea  quae  interrogaveras,  ex- 
tempore verisiiiiilia  responderint."  (2) 

(1)  Digest,  lib.  2,  tit.  4,  de  Testibus.         (2)  Digest,  lib.  22,  tit.  5,  art.  S, 
Domat,  b.  3,  sect.  3,  of  Proofs   by  Wit- 
nesses.    Huberi  Prselect.    Jur.   Civ.    lib. 
22,  tit.  4,  de  Testibus. 


CHAP.  VII. 

Of  the  principal  general  Rules  of  Evidence. 

If  no  objection  is  made  to  the  competency  of  a  witness,  and 
he  is  allowed  to  give  evidence,  the  next  question  is,  what  evi- 
dence ought  to  be  given;  and  in  what  manner  is  the  witness  to 
be  examined.     It  will,    therefore,  now   be  necessary    to    enquire 


Ch.  7.]   Of  the  principal  general  Rules  of  Evidence.  149 

into  certain  general  rules,  which  have  been  established  for  the  pur- 
pose of  directing  the  testimony  of  witnesses,  and  for  the  more  ef- 
fectual attainment  of  tlie  ends  of  justice. 

Some  general  rules  relate  to  the  issue  joined  between  the  par- 
ties. One  of  these  is,  that  the  evidence,  which  either  party  pro- 
duces, ought  to  be  confined  to  the  points  in  issue.  This  is  an  uni- 
versal principle  or  axiom,  and  admits  of  no  exception.  As  the 
true  end  and  object  of  pleading  is  to  raise  the  point  in  issue,  so  the 
true  aim  of  evidence  must  be  to  hit  that  point.  Every  proof  ought 
to  bear,  directly  or  indirectly,  upon  the  facts  in  dispute.  And  an 
irrelevant  argument  is  not  more  unsound  in  point  of  reasoning-, 
than  irrelevant  evidence  is  in  point  of  proof. 

Another  general  rule  is,  that  the  substance  only  of  the  issue 
need  be  proved.  This  is  founded  on  the  principles  of  good 
sense  and  justice.  If  a  party  prove  the  substance  of  the  issue, 
he  has  proved  a  substantial  ground  of  action,  and  is  entitled  to 
his  remedy.  He  will  not  be  obliged  to  prove  immaterial  aver- 
ments, which  might  be  expunged  from  the  record  without 
affecting  his  right  to  recover.  Such  averments  serve  only  to 
encumber  the  record;  and  the  proof  of  them  would  be  as  im- 
material as  the  averments  themselves.  The  former  rule,  then, 
co-operates  with  good  pleading;  this  counteracts  defective 
pleading. 

A  third  general  rule  is,  that  the  affirmative  of  the  issue  ought 
to  be  proved.  This  relates  to  the  person  who  is  to  prove  the 
issue,  and  casts  the  burthen  of  proof  on  the  affirming  party.  It  is, 
however,  by  no  means  an  universal  rule,  like  the  two  former,  and 
admits  of  many  exceptions. 

The  rules,  just  mentioned,  relate  to  the  general  aim  or  ten- 
dency of  proof,  with  reference  to  the  issue.  There  are  other 
rules,  relating  to  the  medium  of  proof,  independently  of  the  form 
of  the  issue.  Such  is  the  general  rule,  that  the  best  evidence 
which  the  nature  of  the  case  admits,  ought  to  be  produced;  a 
rule  adopted  by  courts  of  justice,  as  a  safeguard  and  security  for 
the  discovery  of  truth.  The  rules,  before  noticed,  shew,  what 
facts  are  to  be    proved;  this  shews,  hoiv  they  are  to   be   proved. 


150  Of  the  Number  of  Witnesses.  [Ch.  7. 

The  substance  of  the  issue  is  not  only  to  be  proved,  but  to  be 
proved  by  the  best  evidence. — Another  rule,  usually  classed 
among  the  general  rules  of  evidence,  and  relating,  like  the  last, 
to  the  medium  of  proof,  is,  that  hearsay  of  a  fact  is  not  admis- 
sible. 

The  consideration  of  these  rules  will  form  the  subject  of  the 
present  chapter.  But  before  we  come  to  examine  them,  it  will 
be  convenient  to  inquire,  first,  in  what  cases  the  testimony  of  a 
single  witness  is  not  sufficient  proof  of  a  fact:  and,  secondly,  as 
to  the  nature  of  presumptive  evidence. 

The  order  in  which  it  is  proposed  to  consider  the  subject,  is  the 
following: 

First,  Of  the  number  of  witnesses  for  the  proof  of  a  fact: 

Secondly,  Of  the  nature  of  presumptive  evidence: 

Thirdly,  That   evidence   is    to    be   confined   to  the  points  in 


issue; 


Fourthly,  That  the  affirmative  of  the  issue  is  to  be  proved: 

Fifthly,  That  the  substance  only  of  the  issue  need  be  proved: 

Sixthly,  That  the   best  evidence  is  to  be  given,  which  the  na- 
ture of  the  case  admits: 

Lastly,  That  hearsay  evidence  is  not  admissible. 

Sect.  I. 
0/  the  dumber  of  Witnesses^  for  the  Proof  of  a  Fact. 

General  rule.  The  general  rule  of  the  common  law,  is,  that  a  single  witness, 
if  credible,  is  sufficient  for  the  proof  of  any  fact.  The  law  of  Eng- 
land differs  in  this  respect  from  the  civil  law,  of  which  one 
maxim  is,  "  unius  responsio  non  omnio  audiatur;"  and  by  the 
law  of  Scotland  at  this  day,  the  testimony  of  a  single   witness  is 


Sect.  1.]  Of  the  Number  of  Witnesses.  151 

not  lawful  evidence  to  convict.  (1)  Lord  Coke  has  said  in  his 
Commentary,  (2)  that  "  when  a  trial  is  by  witnesses,  as  in  the 
case  of  the  challenge  of  a  juror  or  summons  of  a  tenant,  the  affirma- 
tion ought  to  be  proved  by  two  or  more  witnesses,  but,  where  the 
trial  is  by  verdict,  there  the  judgment  is  not  given  upon  witnesses, 
but  upon  the  verdict,  and  upon  such  evidence  as  is  given  to  the 
jury  they  find  their  verdict."  But  this  distinction  has  been  denied 
by  Lord  Holt,  (3)  and  the  doctrine  is  said  not  to  be  warranted  by 
the  authorities  cited  in  its  support, 

In  deciding  upon  ihe  effect  of  evidence,  the  question  isj  not  by 
how  many  witnesses  a  fact  may  have  been  proved,  but  whether  it 
has  been  proved  satisfactorily,  and  so  as  to  convince  the  under- 
standing. The  number  of  witnesses  is  not  more  conclusive  on 
matters  of  proof,  than  a  number  of  arguments  on  a  subject  of  rea- 
soning. If  the  law  were  in  every  case  to  require  peremptorily  two 
witnesses,  this  would  by  no  means  ensure  the  discovery  of  truth; 
but  it  would  infallibly  obstruct  its  discovery,  wherever  a  fact  is 
known  only  to  a  single  witness;  and  thus  secret  crimes  might  es- 
cape with  impunity.  Abstractedly  speaking,  there  cannot  be  any 
reason  for  suspecting  the  evidence  of  a  witness,  because  he  stands 
alone.  The  evidence  of  a  single  witness  may  be  so  clear,  so  full, 
so  impartial,  so  free  from  all  suspicion  and  bias,  as  to  produce  in 
every  mind,  even  in  the  most  scrupulous,  the  strongest  and  deepest 
conviction.  On  the  other  hand,  witness  may  crowd  after  witness, 
all  asserting  the  same  facts,  yet  none  be  worthy  of  credit.  In  short, 
it  is  the  character  of  witnesses,  and  the  character  of  their  evidence, 
that  ought  to  prevail,  not  their  number. 

By  the  law  of  England,  hov/ever,  the  testimony  of  a  single  wit- 
ness will  not  be  sufficient  in  cases  of  perjury  and  high  treason. 

On  an  indictment  for  perjury,  the  evidence  of  one  witness  is  not  In  case  of 
sufficient    to   convict  the   defendant  ;  because   then     there   would  P^'^^^'^^* 
only  be  one  oath  against  another.      "  To  convict  a  man  of  perju- 
ry," said  C.  J.  Parker,  in  the  case  of  the  Queen  v.  Muscot,  (4) 

(1)  Hume's   Comment,  on   the  Laws         (3)  Shotter  v.  Friend,  Carft.  144. 
of  Scotland,  2d  vol.  369.  (4)   10  Mod.  193 

(2)  Co.  Lit.  6,  b. 


152  Of  the  Number  of  Witnesses.  [Ch.  7. 

*'  there  must  be  strong  and  clear  evidence,  and  more  numerous 
ilian  the  evidence  given  for  the  defendant."  It  does  not  appear  to 
have  heen  laid  down,  that  tico  icitnesses  are  necesssary  to  disprove 
the  fact  sworn  to  by  the  defendant;  nor  does  that  seem  to  be  ab- 
solutely requisite.  But,  at  least,  one  witness  is  not  sufficient;  and, 
in  addition  to  his  testimony,  some  other  independent  evidence 
ought  to  be  produced.  (/) 


In  cnse  of 
treason. 


It  was  enacted,  for  the  security  of  the  subject,  by  stat.  1  Ed.  6, 
c.  12,  s.  22,  that  "  no  person  shall  be  indicted,  arraigned,  con- 
demned, or  convicted  for  any  offence  of  treason,  petit  treason,  mis- 
prision of  treason,  unless  the  offender  be  accused  by  two  sufficient 
and  lawful  witnesses,  or  willingly,  without  violence,  confess  the 
same."  It  has  generally  been  thought,  that  a  single  witness  would 
have  been  sufficient,  at  common  law,  on  the  trial  of  those  offen- 
ces; (m)  and  this  stat.  of  Ed.  6,  is  the  first  act  of  the  legislature 
by  which  two  witnesses  are  specially  required.  (1)  A  sin^.ilar  pro- 
5,  6  Ed.  6,  c.  vision  is  contained  in  the  stat.  5,  6  Ed.  6,  c.  11,  s.  12,  which  en- 
!*•  acts,  that  "  no  person  shall  be  indicted,  arraigned,  condemned,  con- 

victed, or  attainted  for  any  of  the  treasons  or  offences  in  that  act 
mentioned,  or  for  any  treasons  which  then  were  or  hereafter  might 
be,  unless  the  offender  be  accused  by  two  lawful  accusers,  who,  at 
the  time  of  the  arraignment  of  the  party  accused,  if  living,  shall  be 
brought  in  person  before  the  party  accused,  and  avow  and  maintain 
what  they  have  to  say  against  the  party,  to  prove  him  guilty  of  the 
treasons  contained  in  the  bill  of  indictment;  unless  the  party  ar- 
raigned shall  willingly,  without  violence,  confess  the  same."  (2) 

Thus  it  appears  that   two  witnesses   would   at  that  time  have 
been  necessary,  not  only  in  trials  for  high  treason,  petit  treason, 
and   misprision  of   treason,   but  also  in   treasons    relating  to   the 
Relating  to       coin   of  the  kingdom.     But  an  alteration    in    this   respect    was 
*=°'°'  made  by  the  stat.    I,  2  Ph.  &  Mary,  c.  10,  st.  12,   and  1,  2  Ph. 

&  Mary,  c.  11,  s.  3,  which  provided,  that  "in  all  cases  of  high 
treason   concerning  the   current  coin,   or   for    counterfeiting    the 

(1)  Foster   C.  L-    233.     Sir  E.    Coke         (2)    See   3   Inst.   25.     Fost.    Cr.    L. 
was   of  opinion,    that    one    witness   was     234,  237. 
not   sufficiaat  to   convict   of  treason    by 
the  ancient    comnr-on    law.     See  3   Inst, 
t  25. 


(l)  See  Note  289,  p.  283.     (m)  See  Note  290,  p.  284. 


Sect.  1.]         Of  the  Number  of  Witnesses.  153 

king's  signet,  privy  seal,  and  great  seal,  or  sign  manual,  and  on 
trials  for  bringing  counterfeit  coin  into  the  realm,  or  for  any  offence 
concerning  the  impairing,  counterfeiting,  or  forgicg  the  current 
coin,  the  prisoners  should  be  tried  by  the  same  evidence,  as  they 
were  before  the  reign  of  Edward  the  Sixth."  (1)  In  these  cases, 
therefore,  a  single  witness  will  now  be  sufficient;  and  it  has  been 
agreed  by  all  the  Judges,  that  these  statutes  extend  to  all  offences, 
touching  the  impairing  of  the  coin,  which  should  afterwards  be 
made  treason.  (2) 

The  Stat.  7,6  W.  3,  c.  3,   which   relates  only  to  such  treasons  7,   8   W.    3, 
as  induce  corruption  of  blood,  enacts  in  the  second  section,  that 
"  no  person  shall  be  indicted,  tried,  or  attainted   of  that  species  of 
high  treason,  or  of  misprision  of  such  treason,  but  by  the  oaths  and  Rule  as  to  two 

VVltnGSSGS. 

testimony  of  two  lawful  witnesses,  either  both  of  them  to  the 
same  overt  act,  or  one  of  them  to  one,  and  the  other  of  them  to 
another  overt  act  of  the  same  treason;  unless  the  party  indicted 
and  tried  shall  vviHing;ly,  without  violence,  in  open  court,  confess 
the  same,  or  shall  stand  mute,  or  refuse  to  plead,  or  in  cases  of 
high  treason  shall  peremptorily  challenge  above  the  number  of 
thirty-five  of  the  jury."  And  by  the  4th  section  it  is  enacted, 
"  If  two  or  more  distinct  treasons  of  divers  heads  or  kinds  are  s.  4. 
alleged  in  one  indictment,  one  witness  produced  to  prove  one  of 
the  said  treasons,  and  another  witness  to  prove  another  of  the  said 
treasons,  shall  not  be  deemed  to  be  two  witnesses  to  the  same  trea- 
son within  the  meaning  of  this  act."  (w) 

Long  before  this  act  of  the  7ih  and  8th  of  William,  it  had 
been  resolved,  at  a  conference  among  the  Judges,  |)reparatory  to 
the  trial  of  the  Regicides,  (3)  that  one  witness  to  prove  one  act 
tending  to  the  compassing  of  the  king's  death,  and  another  wit- 
ness to  prove  another  act  tending  to  the  same  end,  were  suffi- 
cient, and  that  there  need  not  be  two  witnesses  to  prove  every 
overt  act  tending  to  the  compassing  of  the  king's  death.  And 
at  the  trial  of  Lord  Stafford;  (4)  all  the  Judges  present  delivered 
their  opinions  u^n  the  same  point,  and  declared  that  one    wit- 

(1)  The  like    provision    in    statutes,         (3)  Kelyng,  9- 

9W.  3,  c.  26,  s.   7,    and   stat.  6    G.  3,         (4)  SirT.    Raym.    407.     7  Howell's 
c.  53,  s.  3.  St.  Tr.  1527. 

(2)  Gahagan's    case,    1    Leach,    Cr. 
C.  50.     1  East,  P.  C.  129,  S.  C. 

(n)  See  Note  291,  p.  284. 

Vol.  I.  20 


154  Of  the  Number  of  Witnesses.  [Ch.  7. 

ness  to  one  overt  act,  and  another  to  another  overt  act  of  the 
same  species  of  treason,  were  two  sufficient  witnesses  within  the 
statute.  From  that  time  tlie  rule  has  been  considered  as  com- 
pletely settled  ;  and  on  many  occasions,  which  occurred  before 
the  act  of  the  7th  of  WiUiam,  it  was  strictly  followed.    (1) 

Some  alteration  has  been  since  made  in  tlje  worst  species  of 
high  treason,   where  an  attempt  is  made    on  the  king's  person  ; 
and  in  that  case  the  principle  and  mode  of  proceeding  at  common 
39   40  G.  3,  '^^^  ^''^    restored.     The   stat.    39,   40    G.    3,   c.  93,  enacts,  that 
c- 93.  "  in  all  cases  of  high  treason,   when   the   overt  act    alleged  in  the 

indictment  is  the  assassination  of  the  king,  or  any  direct  attempt 
against  his  life,  or  against  his  person,  the  prisoner  shall  be  tried 
according  to  the  same  order  of  trial,  and  upon  the  like  evi- 
dence, as  if  he  stood  charged  with  murder."  A  conviction, 
therefore,  in  such  a  case,  may  proceed  on  the  testiinony  of  a  sin- 
gle witness. 

The  language  of  the  statutes  of  Edward  G,  is,  that  "  the  offen- 
ders are  to  be  accused   by  two  witnesses,"   that   is,  two  witness- 
es are  required  to  prove  the  offence   or  overt  act  of  treason  ;    and 
the  Stat,  of  W.    3,   expressly  confines   itself  to  the  proof  of  the 
Collateral         overt  acts.     With  respect  to  all   other   acts,   therefore,  which  are 
fdcts.  merely  collateral  and  not  conducive  to  the  proof  of  the  overt  acts, 

the  rule  of  the  common  law  is  not  altered,  and  one  witness  is  still 
sufficient.  (2) 

Rule  in  courts  Jt  jg  rm  establisi)ed  principle  in  courts  of  equity,  that  on  a  bill 
praying  relief,  when  the  facts  charged  by  tlie  plaintiff,  as  the 
ground  for  obtaining  a  decree,  are  proved  only  by  a  single  wit- 
ness, and  are  clearly  and  posilivehj  denied  by  the  answer  of  the 
defendant,  the  Court  will  not  grant  a  decree  against  the  defend- 
ant. (3)  (o)  But  where  the  evidence  produced  by  the  plaintiff  is  so 
far  supported  and  corroborated  by  proof  of  concurring  circum- 
stances, as  to  outweigh   the  ilenial  in    the  defendant's  answer,  (4) 

(1)  Fee  Fost.  Cr.  L.  286,  and  Sir  (4)  Wallon  v.  HtTubbs,  2  At?<.  19. 
W.  Parkvns' case,  4  St.  Tr.  650,  651,  Janson  v.  liany,  ib.  140.  Pember  v. 
fol.  ed.  S".  C.  13    HovveU's  St.    Tr.    114.  Mathers,    1    liro.   Ch.    (a.   52.       Toole 

(2)  Smith's  ca.se,  Fost.  242.  v.    Mcriiicott,    1    Ball    &    Beatiie,    403. 

(3)  L'Neve  v.  L'Neve,  1  Vcs.  64,  Bitldulpli  v.  St.  John,  2  Scho.  &,  Lef. 
66.    3    Atk.    646,    S.     C.    1     Ves.     97,  521. 

125.       2    Ve.?.    jun.     243.      East    India 
Comp.  V.  Donald,  9  Ves.  2S2,  283. 

(o)  See  Note  292,  p.  284. 


oect.  2.]  Of  Presumptive  Evidence.  155 

(abstracting  from  tlie  n>incl,  that  the  evidence  on  the  part  of  the 
plaintiff  comes  from  a  disinterested  witness,)  (1)  the  former  rulo 
will  not  apply;  and  the  evidence  of  a  single  witness,  so  strength- 
ened and  confirmed,  will  enable  the  court  to  decree  against  the 
answer,  (p)  And  there  are  many  cases  in  which  the  court  has 
granted  a  decree  against  the  def  ndant  on  the  testimony  of  a  sin- 
gle witness,  when  his  testimony  has  not  been  clearly  and  positively 
contradicted  by  the  answer.  (2)  (q) 

By  the  civil  law,  as  was  before  observed,  two  witnesses  are  re-  Rule  in  eccle- 
quired  for  the  proof  of  a  fact;  and  such  is  the  rule  in  ecclesias- 
tical courts,  whose  practice  is  founded  upon  that  law.  But  even 
in  those  coiu'ts,  if  a  matter  cognizable  at  common  law  arises  in- 
cidentally in  an  ecclesiastical  suit,  (us,  where  a  revocation  of  a  will 
is  pleaded,  or  payment  of  a  legacy,  or  plene  administravit,  and  the 
like,)  the  proof  ought  to  be  according  to  the  principles  and  course 
of  the  common  law;  and  if  they  disallow  the  plea,  because  it  is 
proved  only  by  a  sing'e  witness,  they  may  be  controlled  by  a  pro- 
hibition.  (3) 

Sect.  II. 

Of  the  JSTature  of  Presumptive  Evidence. 

Evidence  consits  either  of  positive  or  of  presumptive  proof,  (r)  Presumptire 
The  proof  is  positive,  when  a  witness  speaks  directly  to  a  fact  from  ^  ' 
his  own  immediate  knowledge;  and  presumptive,  when  the  fact 
itself  is  not  proved  by  direct  testimony,  but  is  to  be  inferred  from 
circumstances,  which  either  necessarily  or  usually  attend  such 
facts.  (4)  This  latter  is  also  called  circumstantial  evidence.  It  is 
obvious,  that  a  presumption  is  more  or  less  likely  to  be  true,  ac- 
cording as  it  is  more  or  less  probable,  that  the  circumstances  would 
not  have  existed,  unless  the  fact,  which  is  inferred  from  them,  had 
also  existed:  and  that  a  presumption  can  only  be  relied  on,  until 
the  contrary  iT actually  proved,  (s) 

In  order  to  raise  a    presumption,  it  cannot  be  necessary  to  con- 

(l)9Ves.  283.  I    Veiilr.     291.       Sholter    v.     rriend. 

(2)  3  Atk.    650.     1  Ves.    66,97.    12  Carth.    142.      1   Ld.  Ray.    221.     Cowp. 
Ves.  80.     3  Ves.  &  Beam.  59.  424.     Comyn's  Dig.  tit.  Prohibition,  (F. 

(3)  Sir   W.  Juxon  v.   Lord    Byron,  2  13,)  and  (G.  23.) 
Lev.    64.      Richardson     v.     Disborow,         (4)  Gilb.  Ev.  142. 


(p)  See  Note  293,  p.  287.  {q)  See  Note  294,  p.  287.   (r)  See  Nolo   295,  p.  288. 
(•)  See  Note  2S6,  p.  288. 


156  Of  Presumptive  Evidence.  [Ch.  7. 

fine  the  evidence  to  such  circumstances  alone,  as  could  not  have 
happened,  unless  they  had  been  also  attended  by  the  alleged  fact — 
for  that  in  efiect  would  be  to  require  in  all  cases  evidence  amount- 
ing to  positive  proof  ;^but  it  will  be  sufficient  to  prove  those  cir- 
cumstances, which  usually  attend  the  fact.  (0  The  definition  of 
the  civilians  is  most  correct,  "  presumptio  nihil  aliud  est,  quam  ar- 
{^umentnm  verisiniile,  communi  sensu  perceptum,  ex  eo  quod  ple- 
rumque  fit  aut  fieri  intelligitur."  A  presumption  is  a  probable  in- 
ference, which  our  common  sense  draws  from  circumstances  usu- 
ally occurring  in  such  cases,  {u)  The  slightest  presumption  is  of 
the  nature  of  probability;  and  there  are  almost  infinite  shades  from 
the  lightest  probability  to  the  highest  moral  certainty,  {y)  If  the 
circumstantial  evidence  be  such  as  may  afford  a  fair  and  reasona- 
ble presun)ption  of  the  facts  to  be  tried,  it  is  to  be  received  and  left 
lo  the  consideration  of  the  jury,  to  whom  alone  it  belongs  to  deter- 
mine upon  the  precise  force  and  effect  of  the  circumstances  proved, 
and  whether  they  are  sufficiently  satisfactory  and  convincing  to 
warrant  them  in  finding  the  fact  in  issue.  (1)  (to)  However,  for  the 
purpose  of  trying  the  weight  and  effect  of  such  presumptive  proofs, 
it  will  often  be  of  the  utmost  consequence  to  consider,  whether  any 
other  fact  happened,  which  might  have  been  attended  by  the  same 
circumstances,  and  with  which  of  the  facts  they  are  most  consis- 
tent, {x) 

"  A  presumption  of  any  fact  is,  properly,  an  infening  of  that 
fact  from  otiier  facts  that  are  known;  it  is  an  act  of  reasoning  ; 
and  much  of  human  knowledge  on  all  subjects  'is  derived  from 
this  source.  A  fact  must  not  be  inferred  without  premises  that 
will  warrant  the  inference;  but  if  no  fact  could  thus  be  ascertain- 
ed by  inference  in  a  court  of  law,  very  few  offenders  could  be 
brought  to  punishment.  In  a  great  portion  of  trials,  as  they  oc- 
cur in  practice,  no  direct  proof,  that  the  party  accused  actually 
committed  the  crime,  is  or  can  be  given;  the  man  who  is  charged 
with  theft,  is  rarely  seen  to  break  the  house  or  take  the  goods  ; 
and  in  case  of  murder,  it  rarely  h-.ippens  that  the  eye  of  any 
witness  sees  the  fatal  blow  struck,  or  the  poisonous  ingredients 
poured   into  the   cup.       In   drawing   an   iiiference    or  conclusion 

(1)  2  il.  Black.  297. 

(0  See  Note  297.  p.  2S9.  (m)  See  Note  298,  p.  289.  (r)  See  Note  299,  p.  307. 
(w)  Sen  Note  .800,  p.  SOS.     (x)  See  Note  301,  p.  309. 


Sect.  2.]  Of  Presumptive  Evidence.  157 

from  facts  proved,  regard  must  always  be  had  to  the  nature  of  the 
particular  case,  and  the  facility  that  appears  to  be  afibrded  either 
of  explanation  or  contradiction.  No  person  is  to  be  required  to  ex- 
plain or  contradict,  until  enough  has  been  proved  to  warrant  a  rea- 
sonable and  just  conclusion  against  him,  in  the  absence  of  explana- 
tion or  contradiction;  but  when  such  proof  has  been  given,  and 
the  nature  of  the  case  is  such  as  to  admit  of  explanation  or  contra- 
diction, if  the  conclusion  to  which  the  proof  tends  be  untrue,  and 
the  accused  offers  no  explanation  or  contradiction,  human  reason 
cannot  do  otherwise  than  adopt  the  conclusion  to  which  the  proof 
tends."  (1) 

It  has  been  very  justly  observed,  (2)  that  when  the  proofs  are  de- 
pendent on  each  other,  or  when  all  the  proofs  are  dependent  upon 
one,  the  number  of  proofs  neither  increase  nor  diminish  the  proba- 
bility of  the  fact:  for  the  force  of  the  whole  is  not  greater  than  the 
force  of  that  on  which  they  depend;  and  if  this  fails,  they  all  fall 
to  the  ground,  [y)  But  when  the  proofs  are  distinct  and  indepen- 
dent of  each  other,  the  probability  of  the  fact  increases  in  propor- 
tion to  the  number  of  the  proofs:  for  the  fa'seiiood  of  one  does  not 
diminish  the  veracity  of  another,  (z) 

There  are  presumptions  of  law,  as  well  as  presumptions  of  fact.  Presumption 
Some  presumptions  of  law  are  considered  sostrongand  conclusive, 
as  not  to  admit  of  contrary  proof;  but  there  are  few  instances  of 
this,  and  much  fewer  in  the  present  day  than  formerly,  the  doc- 
trine of  conclusive  presumptions  applying  principally,  if  not  exclu- 
sively, to  estoppels.  That  innocence  is  to  be  presumed,  till  the 
contrary  is  proved,  may  be  called  a  presumption  of  law,  founded  on 
the  universal  principles  of  justice.  That  a  child  born  during  mar- 
riage shall  be  presumed  to  be  legitimate,  is  another  presumption  of 
the  same  description.  The  grants  and  deeds  are  to  be  presumed 
in  support  of  long  undisturbed  possession,  is  also  a  presumption  of 

(1)  By  Lord  Tenterdcn,  in  R.  v.  edition  of  Pothier  on  Contracts,  Numb. 
Sir  F.  Buidett,  4  Barn.  &  Aid.  161.  16,  sect.  14;  and  in  a  chapter  in  Burnett's 

(2)  Beccaria  ch.  xiv.  The  reader  Treatise  on  the  Criminal  Law  of  Scot- 
will  find  many  sensible  observations,  on  land.  There  are  also  some  sensible  re- 
the  subject  of  Presumption  and  Presump-  marks  in  a  small  tract,  entitled  "  The 
tive  evidence,  in  Evans'  Appendix  to  his  Theory  of  Presumptive  Proof" 


(y>  Seo  Note  802,  p.  313.     {z)    See  Note  303,  p.  313. 


^^S  Of  Presumptive   Evidence.  [Ch.  7. 

law,  founded  on  principles  of  public  policy  and  convenience.  Some- 
thing will  be  said,  in  llie  coin-se  of  this  section,  on  each  of  these 
presumptions. 

oHegZiul'cT.  Children,  born  during  a  lawful  marriage,  are  presumed  to  be  le- 
giiimaie;  but  this  presumption  may  be  removed  by  competent 
proof  of  their  illegitimacy.  Formeily  the  rule  was  so  strict  in  fa- 
vor of  legitimacy,  that  any  proof  of  the  contrary  would  not  be  ad- 
mitted, unless  the  husband  had  been  out  of  tlie  kingdom  during 
the  whole  time  of  gestation;  (rt)  but  this  doctrine  has  been  long 
exploded.      The  general  principle,  to  be  deduced  from  the  autbor- 

Rebuued  by     'ties  on  this  subject,  as  it  was  laid  down  and  confirmed  by  the  case 

proof  of  non-     pf  'p|,e  ]^j,-,o-  v.  Lufte,  (1)  appears  lo  be  this — that  where  there  are 
access.  .  °  .  '  \    /     i  i 

circumstance,  which  sliow  an  impossibility  that  the  husband  could 

be  the  father,  whether  arising  from  his  being  under  the  age  of  pu- 
berty, or  from  his  laboring  under  disability  occasioned  by  natural 
infirmity,  or  from  the  length  of  time  elapsed  since  his  death,  or 
from  his  continued  absence,  the  presumption  is  at  an  end,  and  the 
child  will  be  deemed  illegitimate. 

Proof  of  non-       J^  an  earlier  case,  (2)  the  court  of  king's  bench  hc-ld,  that  there 
access.  .  ....  ."  .„     , 

was  no  necessity  to  prove  the   impossibiliiy,  il   the  other  cu'cum- 

stances  of  the  case  tended  strongly  to  repel  the  presumption  of  ac- 
cess. And  this  point  has  been  since  established  by  tiie  opinion  of 
the  judges  in  the  case  of  the  Banbury  claim  of  peerage,  (3)  in  which 
it  was  held,  that  where  the  husband  and  wife  are  not  proved  to  be 
iuipotent,  and  haveliad  opportunity  of  access  to  each  other  dming 
the  period,  in  which  a  child  could  be  beg-iiten  and  born  in  the 
course  of  nature,  the  presumption  of  legitimacy,  arising  from  the 
birth  of  the  child  during  wedlock,  may  be  rebutted  by  circiniistan- 
ces  inducing  a  contrary  presumption:  and  the  fact  of  non-access 
(that  is,  the  non-existence  of  sexual  intercourse,)  as  well  as  the 
fact  of  impotency,  may  always  be  lawfully  proved  by  means  of 
such  legal  evidence,  as  is  strictly  admissible  in  every  other  case, 
where  a  physical  fact  is  lo  be  proved. 

(1)  1  East,  193,  206.  ed  iu  Simon's    &    Stuart's   Rep.    vol.   i. 

(2)  Goodrigtil,     dem.    Thomson,    v.     153.     And  see  Head  v.    Head,    1   Tur- 
Saul,  4  T.  li.  306  ner's  Ch.  R.   140.     1    Sim.    &    Stuart's 

(3)  2  Selw.  N.  P.  731,  S.  P.    report-     Rep.  150,  S.  C 


(a)  See  Note  304,  p.  314. 


Sect.  2.]  Of  Presumptive  Evidence.  ^59 

This  caso  of  tlie  Binbury  peerage  was  much  cited  in  the  Court 
of  Chancery,  in  the  case  of  Head  v.  Head.(l)  The  Lord  Chan- 
cellor is  there  reported  to  have  said,  that,  <'  according  to  his  re- 
collection of  that  case,  it  was  the  opinion  of  the  judges,  that  where 
personal  access  is  established,  sexual  intercourse  is  to  be  presumed, 
and  that  that  presumption  must  stand,  until  removed  by  clear  and 
satisfactory  evidence; — whether  that  evidence  apjily  directly  to 
the  period,  at  which  personal  access  has  been  proved,  or  whether 
it  may  be  called  satisfactory,  if  it  apply  not  to  that  period,  but  to 
antecedent  and  subsequent  periods."  (2)  (6) 

It   has  been  held,  that,  in  case  of  a  divorce  a  mensa  el  thoro.  a  Birth  during 
child  born  after  such  a  separation  is  presiniied  to  be  illegiiimate:(3) 
in  this  case,  therefore,  the  parly,  who  asserts  the  child's  legitimacy, 
will  have  to  prove  access. 

A  receipt  for  rent  due  on  a  certain  day  is  strong  presumptive  Pr.  ev.  of  pay- 
evidence,  that  the  former  rents  have  been  regularly  paid  down  to  "'  "  ' 
llmt  time,  (c)  But  it  is  only  presumptive  evidence;  and  the  other 
parly  will  be  allowed  to  prove  the  contrary.  (4)  "  If  a  man  give  a 
receipt  for  the  last  rent,"  says  Ch.  B.  Gilbert,  (5)  "  the  former  is  ^^^.^ 
presumed  to  be  jjaid,  because  he  is  su|)posed  first  to  receive  and 
take  in  the  debts  of  the  longest  standing;  especially,  if  the  receij)! 
be  in  full  of  all  demands,  then  it  is  plain  there  were  no  debts  stand- 
ing out;  and  if  this  be  under  hand  and  seal,  the  presumption  is  so 
strong,  that  the  law  admits  of  no  proof  to  the  contrary.''  In  an  action 
for  work  and  labor  done  for  the  defendant,  proof  that  the  plaintiff 
and  other  workmen,  who  were  employed  by  the  defendant,  came 
regularly  to  receive  their  wages  fioni  the  defendant,  whose  practice 
was  to  pay  every  week,  and  that  the  plaintiff'  had  not  been  heard 
to  complain  of  non-payment,  would  be  presumptive  evidence  of 
payment,  to  meet  a  stale  deuiand.  (6) 

(1)  1  Turner,  Ch.  R.  141.  last    c.Tses  show,   timt   an    admission    of 

(2)  See  mIso  Selvv.  N.  P.  731,  732.  llie    receipt  of  the   preiniuin,    in  a    poli- 
(S)   Parish   of  St.  George  v.  St.  Mar-     cy  of  insiitanoe,  is    conclusive    evidence 

garet,  1  Salk.  123.  of  the    payment,    as     heiween    tlie   as- 

(4)  Vide  supra,  p.  108.  sured   and    the  underwriter.       See    also 

(5)  Giib.    Ev.    142.      In    Ahiier   v.     Bal;er  v.    Dewey,    I     Barn.    &.   Cress. 
George,    1    Camp.    392,    ilie    [ilainiiff's     704. 

receipt,  "  in  full   of  all   demands,"  was  (6)   Lucas    v.    Novosilienski,    1    Esp. 

held    to    be    a    l>:ir  to    his    action    of  as-  N.  P.  C  296.     See  vol.  ii-    plea  of  socit 

feumpsit    for    goods    sold.     Sen   Dalzeli  ad  diem,  in    action  of  debt,  p.    171,  et 

V.  Mair,    1   Cuiiipl).  532;    De  Gamiude  seq. 
V.    Pigou,  4    Taunt.    246,     wiiich    iwo 


{b)  See  Note  304,  p.  314.     (c)  See  Note  308,  p.  314. 


IGO 


Of  Presumptive  Evidence. 


[Ch.  7. 


Pr.  ev.  ofre-  Ii  may  be  presumed  that  a  bond  has  been  satisfied  after  a  for- 
[enu  ^^  *^""'  bearance  for  20  years,  unexplained  on  the  part  of  the  obhgee.(l )  [d) 
But  it  has  been  held,  in  the  case  of  a  quit-rent  claimed  by  the  lord 
of  a  manor,  that  proof  by  the  tenant,  that  no  demand  had  been 
made  upon  him  for  near  40  years,  was  not  a  sufficient  ground  for 
presuming  a  release  or  extinguishment;  and  that  no  such  pre- 
sumption could  be  raised  within  less  than  50  years,  which  is  the 
liond.  period  fixed  by  the  statute  of  limitations.  (2)      A  bond  maybe  dis- 

charged by  payment,  and,  on  account  of  the  difficulty  of  proving 
this  fact  after  a  length  of  time,  it  is  reasonable  to  presume  it  with- 
out positive  proof:  but  for  the  extinguishment  of  a  quit-rent  a  deed 
is  necessary,  and  it  would  be  too  much  to  presume,  ihat  the  lord  of 
a  manor  has  executed  such  a  deed,  from  the  mere  fact  of  his  not 
having  demanded  payment  of  the  quit-rent.  "  A  presumption," 
said  Mr.  Justice  Aston,  "  from  mere  length  of  time,  which  is  to 
support  a  right,  is  very  different  from  a  presumption  to  defeat  a 
right;  here  the  presumption  is  to  defeat  the  right  of  the  lord  to  a 
small  payment  within  the  50  years  limited  by  the  statute;  and, 
therefore,  upon  mere  length  of  time,  unaccompanied  by  other  cir- 
cumstances, such  a  limitation  ought  not  to  be  altered,  and^another 
set  up. "(e) 


Pr.  ev.  of. 
property. 


Possession. 


Possession  is  prima  facie  evidence  of  property.  Possession 
with  an  assertion  of  property,  or  even  possession  alone,  gives 
the  possessor  such  a  pro[)erty  as  will  enable  him  to  maintain 
an  action  of  trover  or  trespass  against  a  wrong-doer.  (3)  (/)  Thus 
it  has  been  held,  that  an  agister  of  cattle  may  maintain  trespass 
against  a  person  for  wrongfully  taking  them  away.  (4)  And  this 
principle  applies  to  criminal  as  well  as  civil  cases.  On  a  pros- 
ecution for  larceny,  therefore,  the  property  of  the  goods  may  be 
laid  in  the  person  who  had  possession  at  the  time;  and  proof  of 
the  n)ere  possession  will  support  the  indictment.  This  has  been 
determined  in  the  case  of  an  agister  of  cattle,  (5)  and  in  the  case 
of  a   coachman   who   drove  a  stage-coach   by  which   the   goods 

(1)  See   vol.  2.    c.   7,    on    action   of  Graham  v.  Peate,  1   East,  244.     Sutton 
debt,  and  plea  of  noH  est  factum.  v.  Buck,  2  Taunt.  302. 

(2)  St  32  II.  8,  c.    2,  s  4.     Eldridge         (4)  2  Roll.    Abr.  tit.    Trespass,  (M.) 
V.  Knott,  Cowp.  214.  (5)  Woodward's  case,  2  East,  P.  C. 

(3)  Armorie  v.  Delamirie,  1  Str.  503.  653. 


(d)  See  Note  307,  p.  316.     («)  See  Note  303,  p.  352.  (/)  See  Note  309,  p.  353. 


Sect.  2.]  Of  Presumptke  Evidence.  161 

were  sent,  fl)      So  (to   give   another  example  in    a  civil  case,)  in  Piesnmption 

\    /  \        ^  ...         of  grant. 

an  action  on  a  policy  of  insurance,  (2)  the  mere  lact  ol  possession 

of  a  ship  by  the  plaintiff,  as  owner,  is  suflicient  prima  facie  evidence 

of  ownership;  and  thoush   it  should  appear  on  the  cross-examina-  P'>ssesiion  of 

....  ship. 

lion  of  one  of  the  witnesses  of  the  plaintiff,  that  the  plaintiff  derived 
his  ownership  under  a  bill  of  sale  executed  by  the  witness  himself, 
it  would  not  on  that  account  become  necessary  for  the  plaintiff  to 
produce  that  bill  of  sale.  The  proof  of  possession  will  be  sufficient 
without  the  aid  of  any  documentary  proof,  unless  such  ulterior  ev- 
idence should  be  rendered  necessary  in  consequence  of  some  con- 
trary proof  on  the  other  side. 

There  are  many  cases,  not  within  the  statute  of  limitations,  in  Pr.  ev.  of 
which  courts  of  justice  have  held,  that  juries  ought  to  presume  the  S""*^"  ^' 
most  solemn  instruments  to  support  a  long  uninterrupted  posses- 
sion. All  shall  be  presumed  to  have  been  solemnly  done,  rather 
than  ancient  grants,  which  were  necessary  for  the  perfection  of  the 
thing,  should  be  called  in  question,  although  the  grants  cannot 
now  be  shown.  (3)  Ancient  possession  would  injure,  instead  of 
strengthening  a  title,  if,  after  a  succession  of  ages  and  the  decease 
of  parties,  objections  should  prevail,  which  n)ight  have  been  an- 
swered in  the  lifetime  of  the  parties,  and  which,  if  well  founded, 
would  most  probably  have  been  sooner  made.  (4)  Charters  and  Charters, 
grants  from  the  crown  may  be  presumed  from  great  length  of  pos- 
session, not  only  in  suits  between  private  parties,  but  in  some  cases 
against  the  crown  itself,  if  the  crown  were  capable  of  making  the 
grant.  Thus,  before  the  si.  9  G.  3,  c.  16,  Lord  Mansfield,  C.  J., 
held  that  a  possession  and  enjoyment  for  a  hundred  years  were  ev- 
idence in  support  of  a  title  against  the  crown  ;  for  though  such 
possession  could  not  conclude  as  a  positive  bar,  because  there  was 
no  statute  of  limitation  against  the  crown,  yet  it  might  operate 
against  the  crown  as  evidence  of  right  in  the  defendant,  if  the  claim 
could  have  a  legal  commencement.  (5)  (g) 

(1)  Deakin's   case,   2   East,   P.    C.     R.  492.     Goodiitle  deai.  Parker  v.  Bald- 
653.  win,  II  East,  488. 

(2)  Robertson    v.    French,   4     East,         (4)   Ibid. 

130.  (5)  Case  of  the  King  against  Brown, 

(3)  8    East,   263.     Bedle   v.    Beard,     cited    by    Lord  Mansfield,    Coup.    110. 
12  Rep.  5.     Mayor  of  Kingston  v.  Hor-     And  see  cases  in  note  (3),  supra. 

ner,  Cowp.  102-  3  T.  R.  151,  158.  7  T. 


{g)  See  Note  310,  p.  354. 

Vol.  I.  21 


162 


Of  Presumptive  Evidence. 


[Ch.  7. 


Presumption 
of  grant. 


Presumption 
when  neces- 
sary. 


Grants  are  presumed,  where  the  original  possession  or  enjoy- 
ment cannot  otherwise  be  legally  accounted  for,  or  saiisfaclorily 
explained.  (1)  "  It  is  in  respect  of  the  ancient  continual  possession, 
(says  Sir  Edward  Coke,  (2)  in  the  case  hefore  referred  to,)  that  a 
lawful  grant  shall  be  intended."  Again,  he  snys,  "  all  shall  be 
presumed  to  bo  done,  ivhich  shall  make  the  ancient  appropriation 
good.''''  He  adds,  "ancient  grants  and  nets  are  not  to  be  drawn 
in  question,  alihough  they  cannot  be  siiown,  which  at  first  were 
necessary  to  the  perfection  of  the  thing.''^  But  where  the  original 
possession  is  satisfactorily  accounted  for  and  explained  without  ihe 
aid  of  a  grant  or  conveyance,  and  is  consistent  with  the  fact  of 
there  having  been  no  conveyance,  it  is  then  a  question,  to  be  de- 
termined by  the  jtn-y,  whether  in  fact,  any  grant  or  conveyance 
was  ever  made.  The  case  of  Doe,  on  the  demise  of  Fenwick  v. 
Reed,  (3)  lately  decided,  affords  an  example.  The  defendants,  in 
that  case,  claimed  under  a  person,  who  was  put  into  the  posses- 
sion of  the  estates  in  1752,  in  satisfaction  of  a  debt  owing  to  him 
from  E.  C,  the  owner  of  the  property,  under  whom  the  lessor  of 
the  plaintiff  claimed;  and  that  person's  family  had  retained  pos- 
session from  that  time.  It  was  proved,  also,  that  the  title  deeds, 
relating  to  the  estates,  still  continued  in  E.  C.'s  family,  and  that 
moduses  had  been  paid  in  1779  for  several  estates,  including  the 
estate  in  question.  The  Court  of  King's  Bench  determined,  that 
the  question  had  been  properly  left  to  the  jury,  to  consider,  wheth- 
er they  believed,  that,  in  fact,  any  conveyance  of  the  property  had 
ever  been  made  to  the  person  under  whom  the  defendants  claimed. 
The  verdict  was  for  the  lessor  of  the  plaintiff;  and  the  court  refus- 
ed to  grant  a  new  trial,  (h) 


Endowment. 


Modas. 


An  endowment  of  a  vicarage  may  be  presumed  from  the  long 
and  continued  possession  of  tithes  and  other  profits.  (4)  (t)  So, 
long  and  uninterrupted  usage  will  support  a  mudus  decimandi. 
Such  usage  is  evidence  from  which  the  jury  may  presume 
an  agreement  beyond  lime  of  memory,  between  the  land-owners 
and  all  the  parties,  whose  consent  was  necessary  to  give  it  effect. 
But  usage   will   not  of  itself  be  sufficient   to   support  a   modus  de 


(1)  5  Barn.  &  Aid   236,  237. 

(2)  12  Rep.  5,  b. 

(3)  5  Barn.  &  Aid.  282- 


(4)    Crimes    v.    Smyth,  12  Rep.  4.  2 
Gwili.  514,  716,  782. 


(*)  8«e  Note  811,  p.  S5S.      (.%)  Seo  Note  312,  p.  371. 


sect.  2.]  Of  Presumptive  Evidence.  163 

non  decimandoy  claimed  by  .1  lay  person  against  a  spiritual  rector;  Presumption 

although  it  is  certainly  strong  evidence  of  the  right,  when  a  legal      °      ' 

foundaiion  for  such  an  exemption  has  been  established.  And 
though  constant  usage  is  evidence  of  a  modus  decimandi,  and  is  a 
ground  for  presuming  grants  even  against  the  crown  ;  yet  in  the 
particular  instance  of  a  composition  real  in  lieu  of  tithes,  it  is  set-  Composition 
tied,  that  where  the  deed  cannot  bs  ])roduced,  some  evidence  must  '^^^'' 
be  given  referring  to  the  deed,  or  showing  that  it  did  exist,  inde- 
pendent of  mere  usage.  (1)  (j)  And  the  reason,  why  this  has  been 
so  held,  is  stated  to  be,  that,  if  it  were  otherwise,  the  church  would 
be  defrauded,  and  every  bad  modus  turned  into  a  good  composition. 
*'  The  presumption  of  a  deed  from  long  usage  is  for  ^ihe  furlher- 
ance  of  justice  and  for  the  sake  of  peace,  when  there  has  been  a 
long  exercise  of  an  adverse  right.  For  instance,  it  cannot  be  sup-  Lights, 
posed,  that  any  man  would  suffer  his  neighbor  to  obstruct  the  light 
of  bis  windows  {k)  and  render  his  house  uncomfortable,  or  to  use 
a  way  with  carts  and  carriages  over  iiis  meadow  for  20  years  suc- 
cessively, unless  some  agreement  had  been  made  between  the  par-  Way. 
ties  to  that  effect,  of  which  the  usage  is  evidence.  But  with  re- 
spect to  a  composition  for  tithes,  the  same  reason  does  not  obtain, 
because  temporary  agreements  are  made  and  continued  for  the 
convenience  of  parties  during  a  succession  of  incumbents  :  and 
there  is  no  exercise  of  any  adverse  right,  which  is  generally  deem- 
ed necessary  to  raise  the  presumption."  (2)  (m) 

Upon  the  same  principle,  uninterrupted  enjoyment  of  an  ease-  Easement, 
ment  (n)  for  twenty  years  or  ui)wards  is  strong  evidence  of  a  right 
of  enjoyment,  fron)  which  jniies  are  directed  by  the  court  to  jn'e- 
sunie  a  conveyance  or  agreement  ;  as,  in  an  action  on  the  case 
for  obstructing  the  plaintift^'s  lights  (3)  or  in  the  case  of  a  market 
regularly  kept  above  twenty  years.  (4)  (0)  A  faculty  from  the  01-  Faculty, 
dinary  may  be  presumed  from  the  long  uninterrupted  uj?e  of  a  pew 

(1)  Knight  V.  lialsey,  in  error,  2  Scrjt.  "Viniliams'  ed.  of  Saund.  2  vol, 
Eos.  &  Pull.  206.  Dennot  v.  Nc.-iie.  175,  «;  Dongal  v.  Wilson,  ib.  Mo,  b  ; 
1  Wiglilw.  324.  Clnitfield  v.  Fryer,  Darwin  v.  I'pton,  ib.  3  T.  R.  159. 
1  Price,  253.  Ward  v.  Shepiierd,  Cross  v.  I-cvvis,  2  Barn.  &  Cres.  686. 
3  Price,  60S.  Bennett  v.  SI<elIiiigto!i,  Moore  v.  Rawson,  3  Barn.  &,  Cres. 
1  Daniel's  Rep    10.     And  see  1  Eden's  332. 

Rep.  296.  (4)  Ilolcroft  v.    Ileei,  I  Bos.  &  Pul. 

(2)  2  Bos.  &.  Pull.  206.  401. 

(3)  Lewis    V.    Piice,    reported  in  Mr. 


(;■)  See  Note  313,  p.  o7i.   (A:^  i'-ce  No'e  314,  p.  371.  (/)    See  Note  315,  p.  373. 
(m)  See  Note  316,  p.  375.     (n)  See  Note  317,  p.  375-     (o)  See  Note  318,  p.  385. 


I(j4  Of  Presumptive  Evidence.  [Ch.  7. 

PrcBumpiioii     jn  a  cluiicli,  ckiined  as  appurtenant  to  a  messuage.  (I)  (p)     An 

°^°'"'^"^' adverse  enjoyment  of  a  way  over  another  person's  land  for  above 

Way.  20  years  has  been  considered  a  strong   ground  for  the  jury  to  pre- 

sume a  grant,  alihough,  about  26  years  before,  the  way  had  been 
extinguished  by  an  award  under  an  inclosure  act.  (2)  If,  indeed, 
the  party  had  asserted  his  right  to  be  grounded  'on  the  award,  this 
would  show  that  the  way  was  used  by  mistake  ;  but  unless  it  could 
be  clearly  referred  to  something  else  besides  adverse  possession, 
the  jury  would  probably  be  directed  not  to  consider  small  circum- 
stances as  raising  a  presumption,  that  the  possession  arose  other- 
wise than  by  grant. 

Adverse  possession  for  a  shorter  period   than   20  years  will  not 
of  itself  afibrd  a  ground  for    such  a  presumption  ;  and  there  ought 
Licence-  ^^  j^^^  ^^^^^^  ^^l^^j.  evidence  in  support  of  the  right.  (3)      However, 

a  licence  may  be  presumed  within  that  time,  though  in  general  a 
grant  cannot  ;  as,  in  an  action  of  ejectment  to  recover  part  of  a 
waste  enclosed  by  the  defendant,  where  it  was  proved  that  the 
steward  of  the  lord  of  the  manor  had  from  time  to  time  seen  the 
inclosure,  which  had  been  nearly  thirteen  years,  without  making 
any  objection,  this  was  held  to  be  evidence  from  which  the  jury 
might  presume  a  licence  from  the  lord.  ( 1) 

Usage  j^-,  ^}je  cases  which  have  been    mentioned,  the  usage   for  twen- 

ty years  was  considered  to  be  strong  presumptive  evidence  of  a 
grant  or  agreement.  The  original  enjoyment  cannot  be  legal- 
ly explained  or  accounted  for,  unless  a  grant  has  been  made  ; 
and  on  this    ground    it  is,    that    such    grants  are  presumed.  (5) 

explained.  But  usage  is  only  presumptive  proof;  and,  therefore,  evidence  is 
admissible  to  repel  such  a  presumption  ;  as,  by  showing  that 
the  usage  was  limited,  or  modified,  or  bad  in  its  commencement, 
or  that  it  clearly    originated  in  a  mistake.  (6)      In    the    case  of 

(1)  Rogers  V-  Brooks,  1  T.  R.  431,  4  Campb.  16.  Woodyer  v.  Haddon, 
(a.)  Griffith  v.  JMatli)ews,  5  T.  R.  5  Taunt.  125.  Harper  v.  Charles- 
296,  298.  worth,  4  Barn.  &  Cres.  574. 

(2)  Campbell  v.  Wilson,  3  East,  (3)  6  East,  215.  4  Burr.  1963. 
294,  302.  Keymer  v.  Summers,  Bull.  Colterel  v.  Griffiths,  4  Esp.  N.  V. 
N.  P.    74.     Carr   v.  Heaton,    3    Gwill.     C.  69. 

1262.     As   to   a   public  right   of    way,  (4)  Doe,  dem.  Foley,    v.  Wilson,  U 

by  a  presumed   dereliction    on    the    part  East,  56. 

of  the  owner    of  the    soil,   see    the  case  (5)  5  Barn.  &  Aid.  237. 

of  the  Trustees    of  the   Rugby    Charity  (6)  3  East,  300,  302.     Dawson  v.  D. 

V.  ^lerrj'weather,    11    East,    375.    n.  R.  cf  Norfolk,  1  Price,  246. 

V.  Llo)d,    1    Campb.    260.     R.  v.  Barr, 


(/>)  See  Note  319,  p.  385. 


Sect.  2.]  r  Of  Presumptive  Evidence.  165 

Darwin  v.  Upton,  (1)  which  has  been  cited,  where  die   effect  of  Pfesumption 

this  kind  of  evidence  was  much  considered,  Lord  Mansfield   said, 

"  The  enjoyment  of  hghts  with  the  defendant's  acquiescence  for 
twenty  years  is  such  decisive  presumption  of  a  right  by  grant  or 
otherwise,  that,  unless  contradicted  or  explained,  the  jury  ought  to 
believe  it.  But  it  is  impossible  that  length  of  time  can  be  said  to  J?!g^  P'^f"'"' 
be  an  absolute  bar,  like  a  statute  of  limitation;  it  is  certainly  a  pre- 
sumptive bar,  which  ought  to  go  to  the  jury."  The  other  judges 
also  were  strongly  of  the  same  opinion. 

The  usage  which  is  supposed  to  be  founded  on  a  grant  or  agree-  Limited  right, 
ment  determines  also  the  extent  of  the  supposed  grant.  (2)  The 
right  granted  is  considered  to  be  commensurate  with  tlie  right 
enjoyed.  A  person  who  has  enjoyed  a  limited  right  cannot  law- 
fully enlarge  it  to  the  detriment  of  others;  and  in  case  of  such 
enlargement,  those  who  are  prejudiced  may  lawfully  obstruct  the 
use  in  the  newly  acquired  part;  but  still  he  will  be  entitled  to  the 
enjoyment  of  his  former  right,  not  only  to  the  same  extent,  but  in 
the  same  specific  manner.  (3)  So,  if  a  person  has  a  way  for  car-  Way. 
riages  from  D.  to  B.  over  another  man's  close,  and  purchases  land 
adjoining  to  B.,  he  cannot  use  the  way  with  carriages  to  the  ad- 
joining land,  though  become  first  to  B.,  and  so  to  the  adjoining 
land ;  for  this  way  may  be  prejudicial  to  the  other  person's  close.  (4) 
The  continued  use  and  enjoyment  of  a  private  way  for  carriages 
does  not  necessarily  imply  a  right  to  use  it  as  a  drift-way,  though 
the  one  has  been  often  understood  as  including  the  other.  (5)  How- 
ever, it  has  been  held  that  the  use  of  a  carriage-way  is  evidence  of 
a  right  of  way  for  all  kinds  of  cattle,  more  especially,  if  some  spe- 
cies of  cattle  have  been  usually  driven  along  the  way;  and  that  it 
will  be  a  question  for  llie  jury  to  determine,  from  the  nature  and 
situation  of  the  premises,  and  from  other  circumstances,  whether 
it  is  more  probable  that  the  grant  included  both  rights  of  way,  or 
that  one  of  them  was  excluded.  (6) 


(1)  2Saund.  175,  c.  See  also  6  (4)  Roll.  Ab.  391,  tit.  Chimin,  art. 
East,  20S,  214.  3.     Laughton  v.  Ward,  1  Lutw.  111. 

(2)  14  East,  339,  340.  (5)    1  Taunt  284,  2S5. 

(3)  Chandler  v.  Thompson,  3  (6)  By  Mansfield  C.  J.  and  Cham- 
Campb.  80.  And  see  Martin  v.  Go-  bre  J.  in  Pall.ird  v.  Dyson,  1  Taunt 
ble,  1  Campb.    320.       Beuley  v.  Shaw,  279. 

6  East,  208. 


166 

Presumpl'ion 
of  grant. 

Consent  of 
OM-fler. 

Way. 


Lights. 


Of  Prtsumjjiive   Evidence.         •  [Ch.  7. 

The  principle  above  stated  must  always  be  understood  with  this 
qualification,  that  the  possession,  from  which  the  parly  would  pre- 
sume a  grant  of  the  easement,  was  with  the  knowledge  of  the  per- 
son seised  of  an  estate  of  inheritance  (q)  If  a  tenant  for  years  or 
for  life  gives  a  licence  to  anoiher  to  enjoy  an  easement  on  his  lands 
for  above  twenty  years  without  interruption,  this  will  not  eflect 
the  person  in  reversion  or  remainder;  but,  on  the  determination  of 
the  particular  estate,  he  may  dispute  the  right  to  the  easement, 
and  the  length  of  possession  will  not  be  evidence  against  him  to 
presume  a  grant,  unless  it  can  be  shown  that  he  acquiesced.  (1) 
So,  where  a  person  made  windows  in  his  house,  and  had  ihem 
for  above  twenty  years,  without  any  interruption  froiri  the  occupier 
of  the  opposite  premises,  who  occupied  them  under  a  lease,  the 
Court  of  King's  Bench  held,  that  the  possession  of  such  an  ease- 
ment would  not  affect  the  landlord  on  the  determination  of  the 
lease,  and  that  he  would  not  be  liable  to  an  action  for  raising  the 
height  of  his  own  premises,  and  thereby  obstructing  the  light 
through  the  new  windows.  (2) 


Pr.  cv.  in  Presumptive,  or  circumstantial  evidence,  must  obviously   be   as 

criminal  cases.  j^j^^,^j^gj^jg  in  criminal  prosecutions  as  in  civil  cases;  for  whether 
the  proceeding  be  of  a  civil  or  criminal  nature,  the  modes  of  reason- 
ing, and  of  drawing  conclusions  from  facts,  nuist  necessarily  be 
the  same,  (r)  When  direct  evidence  of  facts  cannot  be  supplied, 
as  must  continually  happen  in  some  of  the  worst  species  of  crimes, 
reasonable  minds  will  necessarily  form  their  judgment  on  circum- 
stances, and  act  on  the  probabilities  of  a  case.  The  whole  system 
of  human  action  proceeds  on  probability.  And  "as  mathemat- 
ical or  absolute  certainty"  (to  use  the  words  of  Lord  i\iansfield  in 
the  Douglas  cause)  (3)  "  is  seldom  to  be  attained  in  human  afiairs, 
reason  and  public  utility  require,  that  judges,  and  all  mankind, 
in  forming  their  opinion  of  the  truth  of  facts,  should  be  regulated 
by  the  superior  number  of  the  probabilities  on  the  one  side  or  the 
other,  whether  the  amount  of  these  probabilities  be  expressed  in 
words  and  arguments,  or  by  figures  and  numbers."  The  prmci- 
pal  difference  to  be  remarked    between   civil   and   criminal   cases, 

(1)    Bradbury    v.    Grinsel,    2    Saund.  (2)  Daniel  v.  North,  11  East,  S72. 

175,    d.   in    note.     Wood    v.    Veal,    5  (3J     Cited    in   Andrew    Sluurt'a    Sd. 

Barn    &  Aid.  454.     Harper  v.    Charles-  letter  to  Lord  Mansfield,  vide    supra,    p. 

worth,  4  Barn    &  Cress.  574.  157. 


(q)    See  Note  320,  p.  385.     (r)  See  Note  321,  p.  385. 


Sect.  2.]  Of  Prtsumptive  Evidence.  167 

wiih  reference  to  the  modes  of  proof  by  direct  or  circiimslantial 
evidence,  is,  that  in  the  former,  where  civil  rights  are  ascertained, 
a  less  degree  of  probabihiy  may  be  safel)-  adojited  as  a  ground  of 
judgment,  than  in  ihe  latter  case,  which  affects  life  and  liberty. 
In  criminal  prosecutions,  it  has  been  observed,  (I)  the  circumstan- 
tial evidence  should  be  such,  as  to  produce  nearly  the  same  degree 
of  certainty  as  that  which  arises  from  direct  testimony,  and  to 
exclude  a  rational  probability  of  innocence.  Doubtless,  the  cir- 
cumstances ought  to  be  of  such  a  nature  as  not  to  be  reasonably 
accounted  for  on  the  supposition  of  the  prisoner's  innocence,  but 
perfectly  reconcilable  with  the  supposition  of  his  guilt. 

Circumstantial  evidence  has,  in  some  instances,  undoubtedly 
been  found  to  produce  a  much  stronger  assurance  of  the  pris- 
oner's guilt,  than  could  have  been  produced  by  the  most  direct 
and  positive  testimony.  (2)  As  a  general  principle,  however,  it 
is  certainly  true,  that  positive  evidence  of  a  fact  from  credible 
eye  witnesses  is  the  most  satisfactory  that  can  be  produced,  and 
the  universal  feeling  of  mankind  leans  to  this  species  of  evidence 
in  preference  to  that  which  is  merely  circumstantial.  If  posi- 
tive evidence  of  a  fact  can  be  produced,  circumstantial  evidence 
ought  not  to  be  trusted,  (s)  Chief  Baron  Gilbert,  therefore,  con- 
siders it  a  higher  species  of  jjroof.  He  says,  "  When  the  fact 
itself  cannot  be  proved,  that  which  comes  nearest  to  the  proof  of 
the  fact  is  the  proof  of  the  circumstances  which  necessarily  or 
usually  attend  such  facts;  and  which  are  called  presumptions 
and  not  proofs,  for  they  stand  instead  of  the  proofs  of  the  fact,  till 
the  contrary  be  proved."  (/) 

A  difference   between   witnesses  on   points  cf  little  importance  Difference 
£,,      ,  ,     .  •  rni  ...     between  wit- 

anords  no   reason  to  suspect  then'  veracity.      i  hese  variations   m  nesses. 

testimony  occur  every  day  in  the  transactions  of  common  life,  and 

may  be  explained   on  the  commonest  principles   of  human  nature, 

(1)   Burnet's   Trenlise    on   the  Crini-         (2)  A    very    remarkaljle    case  of  cir- 
inal    Law    of    Scollaiitl,    p.    323.      See     cumstiintial    evidence  is  stated   at  length 
niso    the     very    nitisferly    siiiiiniing     up     in  Purnet's  Treat,  on  the  Criminal    Law 
of  ihe    Lord    Ch.    .lusiico  of  ilie    Court     of  Scotland,  p.  524. 
of  K.  B.  in    Ireliind,  on  the  trial  of  Gra- 
liain,  Forbes,  and   others  for  a  conspira- 
cy.    Printed  Rep.  p.  360. 

(«)  See  Note  S22,  p.  365.     (0  See  Note  323,  p.  386. 


168  Of  Presumptive  Evidence.  [Ch.  7. 

Men  relate  facts  as  they  observe  and  remember  them;  and  the 
powers  of  attention,  observation,  and  memory,  are  infinitely  di- 
versified. A  difference  in  the  manner  of  relating  unimportant 
circumstances  is  perfectly  natural,  and  what  might  be  expected 
in  the  ordinary  course  of  things:  on  the  contrary,  it  is  the  exact 
coincidence  in  minute  particulars,  that  shows  contrivance,  and 
excites  suspicion.  An  eminent  writer,  in  adverting  to  the  dif- 
ferences in  the  narrative  of  the  sacred  writers,  has  made  some 
very  judicious  observations  on  this  subject,  which  are  of  uni- 
versal application.  (1)  "  If  several  independent  witnesses  of  fair 
character,"  he  says,  "  should  agree  in  all  the  parts  of  a  story, 
(in  testifying,  for  instance,  that  a  murder  or  a  robbery  was  com- 
mitted at  a  particular  time  in  a  particular  place,  and  by  a  certain 
individual,)  every  court  of  justice  in  the  world  would  admit  the 
fact,  notwithstanding  the  abstract  possibility  of  the  whole  being 
false.  Again,  if  several  honect  men  should  agree  in  saying  that 
they  saw  the  King  of  France  beheaded,  though  they  should  dis- 
agree as  to  the  figure  of  the  guillotine,  or  the  size  of  his  execu- 
tioner, as  to  the  King's  hands  being  bound  or  loose,  as  to  his 
being  composed  or  agitated  in  ascending  the  scaffold;  yet  every 
court  of  justice  in  the  world  would  think,  that  such  difference, 
respecting  the  circumstances  of  the  fact,  did  not  invalidate  the  evi- 
dence respecting  the  fact  itself.  It  would  be  impossible  to  estab- 
lish the  truth  of  any  fact,  if  a  disagreement  in  the  evidence  of 
witnesses,  in  minute  points,  should  be  considered  as  annihilating 
the  weight  of  their  evidence  in  points  of  importance.  In  a  word, 
the  relation  of  a  fact  differs  essentially  from  the  demonstration  of 
a  theorem.  If  one  step  is  left  out,  if  one  link  in  the  chain  of  ideas 
constituting  a  demonstration  is  omitted,  the  conclusion  will  be  de- 
stroyed; but  a  fact  may  be  established,  notwithstanding  a  disa- 
greement of  the  witnesses  respecting  it  in  certain  trifling  particulars 
of  their  evidence."  (w) 

Goods  found         Q,-,  g^  indictment  for  larceny,    proof  that   part   of  the   stolen 
on  prisoner.  ,      ,  ,  r         ^  ,  c     ^  • 

goods   have   been  lound    upon   the  person   oi   the   prisoner,  or  m 

his  house  or   possession,  is    presumptive  evidence   against   him  of 

his.  having  stolen  them,  so   as  to  call  upon  him   for  his  defence: 

and   may  be  sufficient  to  warrant  a  conviction,  if  no  facts  appear 

(1)  The  Bishop  of  LlandafF's  Apology,  p.  79. 


(u)  See  Note  324,  p.  395. 


Sect.  3.]     Evidence  confined  to  Points  in  Issue.  169 

in  evidence  to  repel  that  presumption.  The  goods  are  sometimes 
found  in  the  prisoner's  house  before  his  apprehension,  frequently 
found  afterwards;  and  there  can  be  no  objection  to  proof  of  their 
being  found  at  one  time  or  the  other.  This  kind  of  evidence  is 
frequently  strengthened  materially  by  other  circumstances,  as  by 
proof,  that  about  the  time  of  the  oflence,  the  prisoner  was  near  the 
spot  from  which  the  goods  were  taken,  or  that  he  gave  some  false 
account  respecting  the  goods  on  being  charged  with  the  crime,  or 
endeavored  to  conceal  them,  or,  perhaps,  tried  to  prevent  an  in- 
spection, or  by  some  other  proof  of  suspicious  circumstances  in  his 
behaviour.  On  the  other  hand,  the  inference,  arising  from  the 
mere  fact  of  possession,  will  be  much  weakened,  if  any  considera- 
ble time  has  elapsed  between  the  loss  of  the  propeity  and  the  find- 
ing of  it  again,  or  if  the  properly  was  from  its  nature  likely  to  pass 
in  the  interval  through  many  hands;  especially,  where  the  prison- 
er betrayed  no  appearance  of  guilt  at  the  time  of  his  apprehen- 
sion, {t) 

Sect.  III. 

Evidence  is  to  be  confined  to  the  Points  in  Issue,  (u) 

The  sole  object  and  end  of  evidence  is,  to  ascertain  the  truth 
of  the  several  disputed  facts  or  points  in  issue  on  the  one  side  or  on 
the  other;  and  no  evidence  ought  to  be  admitted  to  any  other 
point.  As  it  is  a  rule  of  pleading,  that  the  issue  should  be  on  a 
material  point,  so  it  is  an  essential  rule  of  evidence,  that  the  proof 
should  be  material  and  relevant  to  the  issue,  (v) 

Evidence  must  always  be  considered  with  reference  to  the  sub-  Relevancy. 
ject  matter,  to  which  it  is  applied.  And  it  is  material,  therefore,  to 
consider  the  view,  with  which  particular  evidence  is  offered,  in  or- 
der to  determine  whether  it  bears  upon  the  point  in  issue.  Evi- 
dence may  be  admissible  in  one  point  of  view,  though  not  in  an- 
other. («')  A  question,  for  instance,  which  would  have  been  irrel- 
evant and  improper  on  the  examination  in  chief,  may  be  rendered 
necessary  by  the  course  of  a  cross-examination. 

In   criminal  cases,   though  it   is  not   material,  in  general,    to  in-  Larceny. 
quire  into  any  other  stealing  of  goods,   besides   that  specified  in 


(0  See  Note  325,  p.  423.  (u)  See  Nolo  326,  p.  428.    (f)  See  Note  327,  p.  429. 
(to)  See  Note  328,  p.  430. 

Vol.  I.  22 


Arson. 


Public  bridge. 


170  Evidence  confined  to  Points  in  Issue.       [Ch.  7. 

the  indictment,  yet,  for  the  purpose  of  asccrlainiqg  the  identify  of 
the  person,  it  may  be  often  iir.portant  to  show,  that  other  goods, 
which  had  been  upon  an  adjoining  part  of  the  premises,  were  stol- 
en in  the  same  night,  and  afterwards  found  in  the  prisoner's  pos- 
session. This  is  strong  evidence  of  the  prisoner  having  been  near 
the  prosecutor's  iiouse  on  the  niglit  of  the  robbery;  and  in  that 
point  of  view  it  is  material,  (.t)  Thus  also,  on  an  indictment  for 
the  crime  of  arson,  it  may  be  shown,  that  propeity,  which  had 
been  taken  out  of  the  house  at  the  time  of  the  firing,  was  afterwards 
found  secreted  in  the  possession  of  the  prisoner.  (1)  To  give  one 
other  instance:  On  an  indictment  against  a  county,  for  not  refiair- 
ing  a  public  bridge,  the  defendants  may  show,  under  the  genera) 
issue,  that  the  bridge  had  been  repaired  from  time  to  time  by  pri- 
vate individuals;  for  one  question  is,  whether  the  bridge  is  a  pub- 
lic bridge?  and  upon  that  question  it  is  material  to  inquire,  by 
whom  and  in  what  manner  it  had  been  repaired,  with  a  view  of 
ascertaining,  whether  those  repairs  were  adapted  to  the  service  of 
the  public,  or  merely  to  the  purposes  of  ornament  or  private  con- 
venience. It  is  one  medium  of  proof,  to  show  that  the  bridge  has 
been  repaired  by  individuals;  though  that  alone  woula  be  of  very 
little  weight.  (2)  (y) 

Admissions  on       As  the   iurv  are  bound  to  try   onlv  the   matter  in  issue  between 
record.     .  ,  .''•'..  ,    ,        ■  •  it 

the  parties,  no  evidence  need   be  given  to  prove   any  points  winch 

are  admitted  on  the  record,  and  none  can  be  received  to   dispute 

Trespass.         an  admission   on   the  record.  (.3)      Thus   in  an   action   for  cutting 

down  trees,  if  the  plaintiff  replies  to  the  defendant's   plea  of  soil 

and   freehold,  that  the  trees  were   his  trees  and   freehold,   &:c.  he 

thereby   admits   the   plea  of   the   defendant,  and    cannot   dispute 

Case.  that  he  had  the  freehold  of  the  soil.      So,  if  a  tenant  justifies  for 

common,   and  the   issue  on  the   right  of  common  is  found   for  the 

demandant,   the   jury  cannot   find,   that  the    tenant  did  not  put  in 

his  cattle;  for   tliat  is  ad;tiitted.  (4)      So  in   an   action  of  debt  on 

an  award,    where   the   defendant   pleads  uo  such  aivard,   the  jury 

cannot  find   matters    wliich   make   tiie  award   void,  if  they  are  not 

contained   in  the   award  itself.  (5)      If  the  defendant,  in  an  action 

(1)  Rickmau's   case,    2    East,   P.  C.  (3)  Pull.  N.  P.  [21)8.] 
1035.  (4)  Com.  Dig-  tit.  Pleader,  (S.  17.) 

(2)  R.  V.    The  Inhabitants  of  North-  (5)  2  Roll.  Abr.  692,  1   25. 
amptODshire,  2  Maule  &.  Selw.  262. 


Debt. 


(i)  See  Note  329,  p.  432.     (y)  See  Note  830,  p  432. 


Sect.  5.]     Evidence  confined  to  Points  in  Issue.  171 

of  covenant  for  not  keeping  premises  in  repair,  plead  performance,  Covenant, 
he  admits,  by  refraining  from  the  plea  option  est  factum,  so  much 
of  the  deed  as  is  expanded  on  llie  record  ;  but  he  admits  no  more; 
and  if  the  plaintiff  would  avail  himself  of  any  other  part  of  tlie 
deed,  he  must  prove  it  in  the  common  way  by  the  attesting  wit- 
ness. (1) 

f 

The  defendant's  plea  of  plene  adminislravit  admits  that  he  is  ad-  ^'*^"  ofplene 
,  ,  r  II-  ...  admin, 

nimistrator,  and  he  cannot  alterwards  dispute  it  m  the  same  action. 

The  plea  of  not  guilty  in  an  action  for  an  assault  upon  a  person  de- 
scribed as  the  wife  of  the  plahitiff,  admits  the  marriage.      The  plea 
of  payment,  in  an  action  of  debt  by  the  assignees  of  a  bankrupt  up-  Payment 
on  a  bond,  admits  their  title   to   sue  as  assignees  ;   (2)   the  general 
principle  being,  that  a  party,  who  puts  himself  upon  one  issue,   ad- 
mits all  the  rest.    |If  the  defendant  in  an  action  of  trespass  justify  justification  in 
the  removing  of  the  object,  with  which  he  is  charged,  as  injurious  trespass. 
to  his  property,  and  the  plaintiff  reply  that  the  defendant  removed 
it  with   unnecessary   force,  doing   unnecessary   damage,  &c.,  this 
replication  admits  damage  to  a  certain  extent,   such   as  would  jus- 
tify the  defendant  in  removing  the  object,  and,  therefore,  precludes 
the  plaintiff  from  showing  that  no  damage  had  been  done.  (3)  (z) 

Such  evidence  alone  ought  to  be  admitted,  as  in  some  manner  Proof  of  other 
bears  upon  the  question  at  issue.      An  inquiry  into  other    trans-  ^'■^"^^•^^'°"' 
actions,  besides  those  immediately  contested,   may   in  some  cases 
be  entirely  irrelevant.      The   relevancy   of  evidence  must  depend 
upon   the    nature    and    circumstances   of  the   particular  case;  for 
all  evidence  is  to  be  considered   with  reference  to  tlie  subject  mat- 
ter,  to  which  it  is  applied.     For    instance,   in    an  action  ag=iinst  other  accep- 
an  acceptor  of  a  bill  of  exchange,  if  the  defence  is  that  the  accept-  tanco. 
ance  is  forged,  it  cannot    be    material    lo    inquire,    whether  the 
person,  suspected  of  the  forgery,   has  forged  the  defendant's  name 
to  another  acceptance,  [i)     Or  where   the    question,   between  a 

<1)   VViliiams  V.  Sills,  2  Campb.    419.  (3)   Pickering  v.  Rudd,    I    Stark.    N. 

For  other  examples  see    Hill  v.  Wright,  P.  C.  58. 

2  Esp.  N.  P.  C.  669.     Watson   v.   King,  (4)  Balutti  v-   Serani,    Peake,  N.    P. 

4  Cariipb.  272.     Harrington  v.  M '.Morris,  C    142.     Viiiey  v.  Barrs,    1  Esp.  N.    P. 

5  Taunt.  228.  C.  293. 
(2)   Crosbie  v.  Oliver,  I  Stark  .N.    P. 

C.  76. 

(2)  See  Note  331,  p  444. 


172  Evidence  confined  to  Points  in  Issue.      [Ch.  7. 

Other  agree-  landlord  and  bis  tenant,  is,  whether  rent  was  payable  quarterly 
or  half-yearly  ?  it  must  be  obviously  irrelevant  to  consider  what 
agreements  subsisted  between  the  landlord  and  other  tenants,  or 
at  what  time  their  rents  would  become  due.  (1)  (a) 

On  the  other  hand,  it  may  frequently  be  very  proper,  and  in 
some  cases  absolutely  necessary,  to  look  beyond  the  transaction, 
which  is  the  immediate  subject  of  inquiry,  into  previous  transac- 
tions, for  ihe  purpose  of  discovering  the  knowledge  of  the  parties, 
their  motives,  or  intentions.  (2)  The  case  of  Hunter  v.  Gibson 
and  Johnston'(3)  affords  an  instance  of  this  kind.  That  was  an  ac- 
tion by  an  indorsee  against  the  defendants,  as  acceptors  of  an  in- 
strument purporting  to  be  a  bill  of  exchange:  a  question  arose  on 
the  third  count,  which  staled  the  bill  to  be  payable  to  bearer,  under 
Other  transac-  the   following   circumstances:  It  appeared   in  evidence,   that   the 

tions  to  show    name  of  the  person  mentioned   as  payee  was  merely  fictitious,  but 

knowledge.  ^  ,  ^         ,   ■     -rr         ^    c        \  c 

this  fact  was  not   known   to  the   piaintifi;  and   lor  the   purpose  ol 

showing,  that  the  defendants  at  the  lime  of  their  acceptance  knew 
the  name  in  ihe  bill  lo  be  fictitious,  or  that  the  defendants  had  giv- 
en authority  to  the  drawer  to  draw  the  bill  in  question  payable  to  a 
fictitious  person,  the  plaintiff  proposed  to  prove,  that  the  defendants 
had  given  a  general  authority  to  the  drawer  to  draw  bills  of  ex- 
change upon  them,  to  be  made  payable  to  fictitious  persons,  and 
evidence  to  this  effect  was  produced;  the  counsel  for  the  defend- 
ants objected  to  this  evidence,  on  the  ground  that  it  had  no  rela- 
tion to  the  particular  bill  in  question,  and  the  facts  of  any  particu- 
lar transaction  could  not  legally  be  inferred  from  circumstances 
which  applied  wholly  to  other  transactions.  Lord  Kenyon,  who 
tried  the  cause,  admitted  the  evidence;  upon  which,  the  counsel 
for  the  defendants  tendered  a  bill  of  exceptions.  The  Court  of 
King's  Bench  gave  judgment  for  the  defendant  in  error.  A  writ 
of  error  was  then  brought  in  the  House  of  Lords;  and  the  ques- 
tion on  the  admissibility  of  the  evidence  was  referred  to  the 
Judges.  On  this  question  there  was  a  division  among  the 
Judges:    but  the  majority   of    them    being    of    opinion,   that   the 

(1)   Carter    v.    Pryke,    PeaUe,  N.    P-  (2)    See    infra,    as    to    the    proof   of 

C.  94.      For  other   examples,   see   Hoi-  knowledge  in  issuing  counterfeit  money, 

combe    v.     Ilewson,    2     Campb.      39t.  (3)  2  II.  Bl.   187,  288,  290,  295. 
Spencely  v.  De  Willot,  7  East,  108. 


(a)    See  Note  332,  p   451. 


Sect.  3.]     Evidence  confined  to  Points  in  Jssue.  173 

evidence  ought  to  have  been  received  and  left  to  the  jury,  the  Proof  of  other 

"  1    /;\  •>     "  customs. 

judgment  below  was  affirmed.  (6)  

When   a  right  is   claimed   by  custom  in  a   i)aiiicular   manor  or  Proof ofcus- 

parish,   proof  of  a  similar  custom  in  an  adioinin*   parish  or   manor  loms  m  other 
r  ^    r  ^  ^  .       manors,  &c 

is  not  admissible  in  evidcnce.(l)  In  the  Duke  of  Somerset's  case, (c) 

Lord  Ch.  J.  Raymond  said,  he  had  always  looked  upon  it  as  a  set- 
tled principle  in  the  law,  that  the  customs  of  one  manor  should 
not  be  given  in  evidence  to  explain  the  custom  of  another  manor; 
*'  for,  if  this  kind  of  evidence  were  to  be  allowed,  tiie  consequence 
seems  to  be,  that  it  would  let  in  the  custom  of  one  manor  into  an- 
other, and  in  time  bring  the  customs  of  all  manors  to  be  the  same." 
And,  in  addition  to  this  argument  of  inconvenience,  the  objection 
taken  to  the  evidence  in  that  case,  namely,  that  it  was  inapplica- 
ble to  the  point  in  dispute,  appears  to  be  very  strong;  customs  be- 
ing different  in  different  manors,  and  in  their  nature  distinct.  Un- 
less, therefore,  some  connection  or  relation  is  proved  to  have  exist- 
ed between  them,  as  by  showing  that  they  were  all  formerly  holden 
under  the  same  lord,  or  that  the  one  manor  was  anciently  parcel  of 
the  other  manor,  (2)  such  evidence  is  not  admissible. 

But  several  cases  appear  to  have  determined  this  point,  that.  Rule  in  qnes- 
where  ail  the  manors  within  a  certain  district  are  held  by  the  same  t'ons  of /enure, 
peculiar  tenure,  and  a  question  arises  in  any  one  of  them  upon  an 
incident  to  the  tenure,  evidence  may  be  given  of  the  usage,  which 
prevails  in  any  of  the  other  manors  within  the  district.  The  first 
reported  case  of  this  kind  is  Champian  v.  Atkinson,  (3)  where  the 
question  was,  whether  a  general  fine  was  due  to  an  infant  preced- 
ing lord  during  his  minority.''  and  the  defendants  were  allowed  to 
give  in  evidence  upon  the  trial  of  this  issue,  that  other  adjoining 
manors  had  the  same  custom,  not  to  pay  to  the  lord  before  he  at- 
tained his  full  age;  and  similar  evidence  was  there  said  to  have 
been  received,  on  a  question  of  copyhold  tenure,  between  certain 
manors  in  Middlesex. 

(1)   Dul<e   of    Somerset    v.    France,  Wood,  I},  in  Doe  dein.  Foster  v.  Sisson. 

1  Str.  661.     Rudingv.    Newell,    2    Str.  12  E;ist,  63,  S.  P.      ErsUiiie    v.    Ruffle, 

957.      Furneaux   v.    Hutchins,     Cowp.  3  Gwill.  965. 

807.  By  Buller,  J.  in  Noble  v.  Ken-  (2)  Moulin  v.  Dalison,  Cro.  Car.  484. 
noway,    2    Douglas,    512,   S     P.;     by         (3)  3  Keb.  90,  on  Tr.  at  bar. 


(6)  See  Note  333,  p.  452.     (c)  See  Note  334,  p.  455. 


174  Evidence  confined  (o  Points  in  Issue.     [Cli.  7. 

Proof  of  other       Qii   the   authority   of  this  case  of  Champian  v.    Atkinson,   tlie 

customs.  T\    ^  c    c< 

Diike  of  Somerset's  case  (!)((/)  was   principally  decided.      On  a 

trial  at  bar  in  ihat  case,  where  the  issue  was,  whether  a  general 
fine  was  due  from  the  tenants  of  certain  manors  in  Cumberland  to 
the  Duke  as  next  admitting  lord,  the  court,  after  much  argument, 
received  evidence,  that  the  same  fines  had  been  paid  in  similar 
cases  to  the  lords  of  other  manors.  Lord  Ch.  J.  Raymond  and 
Reynolds,  J.  laid  down  the  general  rule  as  above  stated,  and  were 
strongly  against  admitting  the  evidence;  but  afterwards  agreed  to 
receive  it,  on  the  authority  of  the  precedent  in  Keble,  and  of  cases 
said  to  have  been  so  ruled  on  the  northern  circuit.  Fortescue,  J., 
the  only  other  judge  present,  thought  the  evidence  admissible,  and 
made  a  distinction  between  the  cxislom  and  the  tenure  of  a  manor; 
-  and  as  the  question,  there  to  be  tried,  merely  concerned  the  tenure 
of  the  plaintiff's  manors,  he  was  of  opinion  that  it  would  be  proper 
to  inquire,  what  were  the  qualities  that  attended  other  estates  hol- 
den  by  the  saine  tenure. 

Or  custom  of  I"  ^^'^  ^^-^  of  Furneaux  v.  Hutchins,  on  a  question  relative  to 
the  country.  i\^q  custom  of  tithing,  (2)  Lord  Mansfield,  after  laying  down  the 
general  rule,  that  "  p-.oof  of  the  custom  in  one  parish  is  not  evi- 
dence to  affect  another  parish,"  adds  this  qualification,  "  unless  the 
custom  is  laid  as  a  general  custom  of  the  country.".  Thus,  where 
half  of  a  river  belongs,  by  the  constant  custom  of  the  country,  to 
the  lords  of  the  manors  on  each  side  of  the  water,  proof  of  the  cus- 
tom in  one  manor  is  evidence  of  the  same  customary  right  in  an- 
other. (3)  It  is  evidence  of  a  custom  pervading  one  common  dis- 
trict of  manors,  (c) 

Actsof owner-       The  case  of  Sir  Thomas  Stanley  v.    White    (4)   may   here   be 
ship  in  other  ,„  .      '      ~  r  •  \ 

portions  of       mentioned.      This  was    an    action   of  trespass  tor   cutting   down 

property.  ^^^^  plaiiitifl^'s  trees;  the  defendant   pleaded   his   soil  and   freehold 

in  the  close,  tinon  which  the  trees  were  growing,   &c.:  the   plain- 

(1)    Duke   of  Somerset    v.     Fiance,         (2)   Cowp.  803. 

1  Sir.  65S.     See  also    Lowther  v.    Raw         (3)  1  Maule  &  Selvv.  662. 

and  others,  Foitesc.  44,  55,  S.  P.,  on  (4)  14  East,  332.  Bryan  v  Win- 
appeal  to  the  House  of  Lords  from  wood,  1  Taunt.  20S.  Tyrwhitt  v. 
the  judgment  of  Lord  Talbot.  Ch.;  Wynne,  2  Barn-  &  Aid.  554  bee  Hoi- 
Dean  and  Chapter   of  Ely    v.    Warren,  lis  v.  Goldfinch,  1  Barn.  &    Cress.    218, 

2  Atk.    189,   S.    P.      See   also    Cowp.  219. 
807,  808;  5  T.  R.    31;  and    1    iMaule  &, 
Selw.  662. 


((f)  See  Note  335,  p  455.     (e)    See  Note  336,  p.  455. 


Sect.  3.]     Evidence  confined  to  Points  in  Issue.  ^^^ 

tifF  replied  that  ihe  trees  were  his  trees  and  freehold.     It  appeared  Proof  of  othsr 

on  the  trial,  that   the  trees  in  question    grew   in   a   woody  belt,  ol 

considerable  extent,  entire  and  undivided,  which  encircled  the 
plaintiff's  manor,  and  lay  contiguous  to  a  number  of  closes  belong- 
ing to  several  owners,  one  of  which  closes  was  that  of  the  defend- 
ant. Evidence  was  a(hnitted  of  several  acts  of  ownership,  in  dif- 
ferent parts  of  the  belt,  by  those  under  whom  the  plaintiff  claimed 
which  had  been  acquiesced  in  by  the  owners  of  the  adjoining  land. 
And"  the  Court  of  King's  Bench  afterwards,  on  a  motion  for  a  new 
trial,  adjudged  the  evidence  to  have  been  properly  admitted,  as  evi- 
dence of  the  general  right  thi'ough  the  whole  extent  of  such  en- 
tire undivided  inclosure.  which  might  be  presumed  to  have  belong- 
ed formerly  to  one  owner.  This  appears  to  be  the  true  principle, 
on  which  the  proposed  evidence,  in  that  case,  was  admissible.  For, 
generally  speaking,  acts  of  ownership,  submitted  to  by  the  holder 
of  one  portion  of  land,  cannot  be  proof  that  the  person  exercising 
them  has  any  right  to  the  adjoining  land.  (1)  (/) 

The  general   rule,  then,  is,  that  a  custom  of  tithing,  &c.  in  one  9"^'°'^  °^ 
.  .  .  .  .  tithing, 

parish  is  not  evidence  of  a  custom  in  another.      So,  in  an  action  by 

a  rector  for  tithes,  where  the  point  in  issue  is,  whether  there  exists 
a  modus  of  a  certain  sum  of  mori'ey  for  a  particular  farm  in  a  town- 
ship within  the  parish,  the  defendant  will  not,  in  general,  be  allow- 
ed to  inquire,  whether  other  farms  in  the  same  township  are  not 
subject  to  the  same  payment.  Such  an  inquiry,  however,  n)ay  be 
very  proper  on  the  other  side,  in  cross-examination,  for  the  purpose 
of  showing  that  such  payments  cannot  be  a  modus,  consistently 
with  the  evidence  which  has  been  previously  adduced.  This  was 
lately  adjudged  to  be  admissible  in  the  case  of  Blundell  v.  How- 
ard. (2)  The  question  there  was  not  put  by  the  defendant  with  a 
view  of  supporting  the  modus  set  up  by  him,  but  was  put  by  the 
plaintiff,  in  order  to  show  that  this  and  similar  payments  by  the 
occupiers  of  different  tenements  were  merely  poitions  of  a  sum  in 
gross  paid  thrnughout  the  township  by  way  of  composition,  and 
couldjiot  be  a  modus,  since  the  ecclesiastical  surveys,  which  had 
been  produced  on  the  part  of  the  rector,  were  entirely  silent  as  to 
any  modus  co-extensive  with  the  township,  (g) 

(1)  See  1  Barn.  &,  Cress.  21S,  222.         (2)  1  Maule  &  Selw.  292. 


(/  )  See  note  337,  p.  455.     (g)  See  Note  438,  p.  456. 


1 76  Evidence  confined  to  Points  in  Issue.     [Ch.  7. 

Character  of         As  evidence  is  10  be  confined  to  the  points  in  issue,  the  charac- 

party.  r    •  i  i       •         •       i  •  •  .    .,         •  ,         . 

ter  ol  eiUier  party  cannot  be  niquired  into,  jn  a  civil   suit,  unless  it 

is  put  in  issTje  by  the  nature  of  the  proceeding  itself.  (1)  Thus,  in 
an  action  of  ejectment  by  an  heir  at  law,  to  set  aside  a  will  for 
fraud  and  imposition  commiited  by  the  defendant,  witnesses  can- 
not be  examined  lo  the  defendant's  good  character.  (2)  So,  on  the 
trial  of  an  information  against  the  defendant  for  keeping  false 
weights,  where  it  was  proposed  to  call  witnesses  on  behalf  of  his 
character,  Eyre,  C.  B.  ruled,  that  such  evidence  was  not  admi^ible 
in  a  civil  suit.  (3)  "  The  oflence  imputed  is  not,"  he  said,  "  in  the 
shape  of  a  crime.  To  admit  such  evidence  would  be  contrary  to 
the  true  line  of  distinction,  which  is  this,  that  in  a  direct  prosecu- 
tion for  a  crime  it  is  admissible,  but,  where  the  prosecution  is  not 
directly  for  the  crime  but  for  the  penalty,  it  is  not.  If  evidence  to 
character  were  admissible  in  such  a  case  as  this,  it  would  be  ne- 
cessary to  try  character  in  every  charge  of  fraud  upon  the  excise 
and  custom-house  laws."  (A) 

On  trial  for  On  the  trial  of  an  indictment  for  a  rape,  evidence  is  admissible 

rape.  on  the  part  of  the  prisoner,  that  the  woman  bore  a  notoriously  bad 

character  for  want  of  chastity  and  common  decency,  or  that  she 
had  before   been   criminally  connected   with   the   prisoner;  but   it 
cannot  be  shown,  that  she  had  a  criminal   connection  with   other 
Assault  with      persons.  (4)      And,  on  an   indictment  for  an  assault  with  intent  to 
intent.  commit  a   rape,  general  evidence  of  the  woman's  bad   character, 

previous  to  the  supposed  offence,  is  clearly  admissible;  but  evi- 
dence of  particular  facts,  to  impeach  her  chastity,  cannot  be  receiv- 
ed in  this  case  more  than  in  the  last,  not  even  for  the  purpose  of 
contradicting  her  answers  in  cross-examination.  (5)  Her  answers 
to  questions,  respecting  particular  facts,  not  involved  in  the  issue, 
are  conclusive.  And  if  on  cross-examination  she  admit  her  own 
misconduct  in  some  earlier  transactions,  it  would  be  proper,  on  re- 
examination, to  inquire  into  her  conduct  subsequent  to  such  trans- 
actions, for  the  purpose  of  restoring  her  credit.  Other  witnesses 
may  also  b^  called,  to  show  that  she  has  since  retrieved  her  char- 
acter. (6)  (z) 

(1)  Bull   N.  P.  [293.]  (4)  Hodgson's  case,  1-812,  MS.  Russ. 

(2)  Goodright  dem.    Fnrr   v.    Hicks,     &  Ry.  Cr.  C.  211.  S.  C. 

Bull.  N   P.  296.  (5)  R.    v.    Clarke,  2  Stark.   N.  P- C. 

(3)  Attorney  General  v.  Bowman,  2     243,  bv  Mr.  Justice  Holroyd. 
Bos.  &  Pull.  532,  (a).  (6)  'ibid.  242. 


(A)  See  Note  339,  p.  456.    (i)  See  Note  340,  p.  438. 


Sect.  3.]    Evidence  confined  to  Points  in  Issue.  177 

In  trials  for  felony  and  high  treason,  and  in  trials  also  for  misde- 
meanors, (where  the  direct  object  of  the  prosecution  is   to  punish 
the  offence,)  the  prisoner  is  always   permitted  to  call  witnesses  to 
his  general  character,  (j)  and  in  every  case  of  doubt,  proof  of  good 
character  will  be  entitled  to  great   weight,  (k)      The  inquiry  as  to  pro^f  of  ood 
the  prisoner's  general  character  ought  manifestly  to  bear  some  anal-  character, 
ogy  and  reference  to  the   nature  of  the  charge  against  him.     On  a 
charge  of  stealing,  it  would  be   irrelevant  and  absurd  to  inquire  in- 
to the  prisoner's  loyalty  or  humanity;  on  a  charge  of  high  treason, 
it  would  be  equally  absurd  to  inquire  into   his  honesty  and  punctu- 
ality in  private  dealings.      Such   evidence  relates  to   principles  of  Up^n  what 
moral  conduct,  which,  however  they  might  operate  on  other  occa-  P0'"*»- 
sions,  would  not   be  likely   to  operate  on  that  which   alone  is   the 
subject  of  inquiry;  it  would   not  afford  the  least  presumption,  that 
the  prisoner  might  not  have  been  tempted  to  coaimit  the  crime  for 
which   he    is   tried,    and   is    therefore   totally  inapplicable   to  the 
point  in  question.      The  inquiry  must   also   be  as   to   the  general  General  char- 
character:  for   it  is  general  character  alone  which   can  afford  any 
test  of  general  conduct,  or  raise  a  presumption  that  the  person,  who 
had  maintained  a  fair  reputation   down  to  a  certain   period,  would 
not  then  begin  to  act  a  dishonest  unworthy  part.      Proof  of  par/ic- 
ular  transactions,  in  which  the  defendant  may  have  been  concerned, 
h  not   admissible,   as  evidence  of  his  general  good   character.  (/) 
What,  then,  is  evidence  of  general  character?  The  best  medium 
of  proof  is,  by  shewing  how  the  j>erson  stands  in  general  estima- 
tion; proof  that  he  is  reputed  to  be  honest  is  evidence  of  his  char- 
acter for  honesty,  and  the  species  of  evidence  most  properly  resort- 
ed to  in  such  inquiries.    It  frequently  occurs,  indeed,  that  witnesse?>  Particular  acts- 
after  speaking   to  the   general  opinion  of  the  prisoner's   character, 
state  their  personal  experience   and  opinion  of  his  honesty  ;  but 
when  this  statement  is  admitted,  it  is  rather  from  ftivor  to  the  pris- 
oner, than  strictly  as  evidence  of  general  character.  (1)  (m)  In  ca- 
ses where  the   intention   forms  a   principal  ingredient  in   the  of- 
fence, a  wider  scope   is  allowed.     On  a  charge  of  murder,  for  in- 
stance, expressions  of  good    will  and  acts  of  kindness  on   the  part 
of  the  prisoner  towards   the  deceased,  are  always  considered  im- 
portant evidence,   as   shewing    what  was  his  general   disposition 

(t)  See  31  Howell,  190,  310. 

(;■)  See  Note  341,  p.  459.  (fc)  See  Note  342,  p.  459-     (i)  See  Note  343,  p.  460. 
(m)  See  Note  344,  p.  460. 

Vol.  I.  23 


178  Evidence  confined  to  Points  in  Issue.       [Ch.  7. 

towards  the  deceased,  from  which  the  jury  may  be  led  to  conclude, 
that  his  intcmiop.  cou'd  not  have  been  what  the  charge  imputes,  (n) 

Rule  in  crimi-      'j^^jjg  j.^j^    j{,^[  ^jj  nianncr  of  evidence  ou^lii  to  be  rejected  which 
cal  cases.  '  ...  ,.  i       t  -i  i 

is  foreign  to  ihe  pomts  in  issue,  appJies   more  slrongly,  u  possible, 

to  criminal  prosecutions  than  to  civil  cases.      This  rule  is  founded 
in  common  justice;  for  no  person  can  be  expected  to  answer,  un- 
Treason.  prepared  and  at  once,  for  every  action  of  his  life.   In  treason,  there- 

fore, no  evidence  is  to  be  admitted  of  any  overt  act  that  is  not  ex- 
pressly laid  in  the  indictment.  This  v;as  the  rule  at  common  law: 
and  it  is  again  prescribed  and  enforced  by  the  statute  of  W.  3, 
which  contains  an  express  provision  to  that  effect,  (1)  in  conse- 
quence of  some  encroachments  that  had  been  made  in  several  state 
Proof  of  overt-  proseculions.  (2)  The  meaning  of  the  rule  is,  not  that  the  whole 
°'^'^"  detail  of  facts  should  be  set  forth,  but  that  no   overt  act  amounting 

to  a  distinct  independent  charge,  though  falling  under  the  same 
head  of  treason,  shall  be  given  in  evidence,  unless  it  be  expressly 
laid  in  the  indictment;  but  still,  if  it  conduce  to  the  proof  of  any 
of  the  overt  acts  which  are  laid,  it  n:iay  be  admitted  as  evidence  of 
such  overt  acts.  (3)  With  this  view,  the  declarations  of  the  prison- 
er, and  seditious  language  used  by  him,  are  clearly  admissible  in 
evidence,  as  explaining  his  conduct,  and  shewing  the  nature  and 
object  of  the  conspiracy.  (4)  And  acts  of  treason,  tending  to  prove 
the  overt  acts  charged,  though  committed  in  a  foreign  country, 
may  be  given  in  evidence.  (5)  (o) 

Borglary.  On    the  trial   of  an  indictment  for  burglary   and  larceny,  (G)  it 

appeared  upon  the  evidence,  that  the  prisoners  might  have  en- 
tered the  house  before  it  was  dark,  and  that  they  had  not  taken 
any  part  of  the  goods  at  the  time  wlien  they  were  discovered  in 
the  house;  upon   which  the  counsel  for  the  piosecution   proposed 

(1)  W.  3,  c.  3,  s.  8.  letter    from    tho     prisoner,    explanatory 

(2)  Foster,  Cr.  L.  245,  246.  of    that   statefl   on    i!ie    record,   is    ad- 

(3)  Id.    9,    246.       Vaughan's    case,     inissiblt;.      Robinson's    case,   2  East,  P. 
5  St.  Tr.  2,  fol.  ed.    S.  C.     13  Howeirs     C  1112. 

St.  Tr.  453.    Deacon's   case,  9   St.  Tr.         (5)  Fost.  Cr.    L.  10.     Deacon's  case, 

8,  fol.  ed.    S.  C      15   Howell's   St.  Tr.  9   St.  Tr- 8,    fol.    ed.   S.   C.     13  How 

747.  ell's  St.  Tr.  747. 

(4)  R.  V.    Watson,  2  StarUie,   N.   P.         (6)  R.  v.    Vandercomb   and   AbboU, 
C.  134.     So  on  an   indictment  for  send-  2  Leach,  Cr.  C.  816. 

ing   a   threatening   letter,  a   subsequent 


(n)  See  Note  345,  p.  461.     (o)  See  Note  346,  p.  461- 


Seel.  3.j     Evidence  confined  to  Points  in  Issue.  179 

to  eive  evidence  of  a  larceny  in   the  house  committed  by  the  pris-  Proof  of  other 
1-         1  1         I      /-.        .      •  J    I  -I  acts  of  prison- 

oners  on  a  preceding  day;  but  the  Court  rejected  ins  evidence,  on  er. 

the  ground  that  it  tended  to  prove  a  felony  of  a  totally  distinct 
kind,  which  had  no  reference  to  the  subject  matter  of  the  prosecu- 
tion; the  prisoners  were,  therefore,  acquitted  on  this  charge,  but 
afterwards  indicted  again  for  the  otlier  offence,  and  convicted. 

Although  it  is  usual  to  confine  the  prosecutor  to  one  single  act 
of  felony,  yet  when  the  character  of  the  particular  act,  charged 
against  the  prisoner,  is  to  be  collected  from  other  acts  done  by  him, 
all  of  them  constituting  one  entire  transaction,  it  is  discretionary 
in  the  judge  to  allow  the  prosecutor  to  go  into  the  whole. (1)  (p)  J 

In   a  prosecution   for  uttering  a  bank  note,  bill,  or  promissory  p^oof  of  other 
note,  with  knowledge  of  its  being  forged,  proof  that   the  prisoner  actsasevi- 
had  uttered  other  forged  notes  or  bills  of  the  same  kind,  (2)  (q)  or  lention. 
that  he  had  other  forged  notes  or  bills  of  the  same  kind  in  his  pos- 
session, (3)  (r)  is  clearly  admissible,  as  shewing  that  he  knew  the 
note  or  bill   in  question  to   be  forged.      And   on  a   prosecution  for  utteiin"  other 
uttering  counterfeit  money,   the   fact  of  the   prisoner  having  other  "o^es  o'' ™0' 
counterfeit  n)oney  upon  him,  or  of  his  having   uttered  other  pieces 
of  money  of   the  same   kind,   is  evidence   of   his    having  known, 
that  the  money,  which  he  is  charged  with   uttering,    was   counter- 
feit; (4)  (s)  and  proof  of  the  prisoner's  conduct  in  such  other  utter- 
ings,  (as,  for  example,  that   he  passed  by  different  names,)  is,  for 
the  same  reason,  clearly  admissible.  (5)  (t)  Such  evidence,  farfrom 
being  foreign  to  the  point  in  issue,  is  extremely   material ;  for  the 
head  of  the  offence  charged   upon  the  prisoner  is,  that  he  did  the 
act  with  knowledge  :  and  it  woidd  seldom  be  possible  to  ascertain, 
under  what  circumstances   the   uttering  took  place,  (whether  from 

(1)  R.  V.  Ellis,  C  Barn.  &  Cress,  ed  ;  and  they  ought  to  ba  produced, 
145,  by  Lord  Tenterden,  C.  J.  See  R.  v.  Millard,  Bayley  on  Bills,  419. 
also  Egerton's  case,  Russ.  &  Ry.  Cr.  Russ.  &  Ry.  Cr.  C.  245,  S.  C.  There 
C.  376.  is   gieat      authority    for     holding,    that 

(2)  R.  V.  Wylie,  1  New  Rep.  92.  proof  of  utterings  of  forged  l)ill3  or 
R.  V.  Ball,  1  Canipb.  324.  Russ.  &  notes  of  a  different  kind,  is  also  ad- 
Ry.  Cr.  C.  132,  S.  C.  missible.     Bayley  on    Bills,  4th  cd.  450. 

(3)  R.  V.    Hough,    Russ.   &.  Ry.  Cr.         (4)1  New.  Rep.  95. 

C.    120.     R.     V.    Rowley,    Bayley    on         (5)  See    R.   v.    Millard,    Biyley    on 
Bills,    447.     Th9   forgery    of  tho  other     Bills,  449. 
notes  or  bills   must   be   distinctly    prov- 


(p)  Fee  Note  347,  p.  462.     (q)  See  note  348,  p.   462.     (r)  See  Note  349,  p. 
464.       (j)  See  Note  350,  p.  464.       (/)  See  Note  351,  p    465. 


180  Evidence  confined  to  Points  in  Issue.       [Ch.  7. 

Proof  of  other  ignorance,  or  with  an  intention  to  commit  a  fraud,)  whithout  inquir- 
acts  of  prison-    •        •    .     ,1       j  r    1  •  •       1  r       1 

er,  ing  mto  the  demeanor  ot  the  prisoner  m  the  course  of  other  irans- 

actions.  The  more  detached  in  point  of  time  tlie  previous  ulter- 
ings  are,  the  less  relation  they  will  bear  to  that  stated  in  the  in- 
dictment; and  the  question  then  would  be,  whether  the  evidence 
is  sufficient  to  warrant  the  inference  of  knowledge  at  one  time, 
from  such  particular  transactions  at  another  time.  (1)  That  is  a 
question  entirely  for  the  jury.  But  whatever  weight  the  evidence 
may  have,  (which  is  quite  another  consideration,)  it  is  clearly  ad- 
missible; not  as  evidence  of  another  offence,  but  simply  of  another 
transaction,  in  which  the  prisoner  was  engaged. 

Conspiracy  to  On  an  indictment  against  several  prisoners,  for  a  conspiracy  to 
carry  on  the  business  of  common  cheats,  proof  is  admissible,  that  the 
prisoners,  at  a  different  time,  made  similar  representations  to  other 
tradesmen  besides  those  named  on  the  record  :  (2)  (m)  cumulative 
instances  are  necessary  to  prove  the  offence  ;  the  same  sort  of  evi- 
dence is  allowed  in  a  prosecution  for  barratry,  and,  as  before  men- 
tioned, in   prosecutions  for   the  greatest  of  all   offences,  high  trea- 

Murder.  son.  (y)     The  same  kind  of  proof  is  constantly  admitted  in  trials  for 

murder  ;  in  which  former  grudges  and  antecedent  menaces  are 
evidence  of  the  prisoner's  malice  against  the  deceased,  (w) 

Conspiracy  to  On  the  trial  of  an  indictment  against  several  persons  for  a  con- 
spiracy, in  unlawfully  assembling  for  the  purpose  of  exciting  dis- 
content and  disaffection,  it  would  be  irrelevant  to  inquire,  on  be- 
half of  the  defendants,  Vv'hat  the  conduct  of  those,  employed  to  dis- 
perse the  meeting,  may  have  been  at  the  time  of  the  dispersion,  if 
no  evidence  has  been  previously  ofl^ered,  on  the  part  of  the  prosecu- 
tion, as  to  the  conduct  of  the  meeting  at  that  time  or  subsequent, 
ly  ;  for  the  conduct  of  the  dispersers  of  the  meeting  can  have  no 
bearing  on  the  intention  and  object  of  the  meeting  itself ;  in  other 
words,  it  is  irrelevant  to  the  matters  in  issue.  (3)  In  such  a  prose- 
cution, as  the  material  points  for  the  consideration  of  the  jury  are, 
the  general  character  and  intention  of  the  assembly,   and  the  par- 

(1)  New.  Rep.  94.  (3)    R.    v.    Hunt,  3    Barn.  &  Aid. 

(2)  R.  V.  Roberts,   1  Campb.  400.         566,  577. 

(u)  See  Note  352,  p.  465.     (t>)  See  Note  353,  p.  465.     (w)  See  Note  354,  p.  465. 


Sect.  3.]     Evidence  confined  to  Points  in  Issue.  181 

ticular  case  of  each  defendant  as  connected  wiih  that  general  char-  Proof  of  other 
acter,  it  would  be  relevant  to  prove,  on  the  partot  the  prosecution,  oner, 
that  bodies  of  men  came  from  different  parts  of  the  country  to  at- 
tend  the  meeting,  arranged  and  organized  in  the  same  manner, 
and  acting  in  concert.  It  would  be  relevant  also  to  ^hew,  that 
early  on  the  day  of  the  meeting,  in  a  spot  at  some  distance  from 
the  place  of  meeting,  (from  which  very  spot  a  body  of  men  came 
afterwards  to  the  place  of  meeting,)  a  great  number  of  persons,  so 
organized,  had  assembled,  and  had  there  conducted  themselves  in 
a  disloyal,  riotous,  or  seditious  manner.  (1)  Further,  it  would  be 
relevant,  on  such  a  trial,  to  produce  in  evidence  certain  resolutions, 
which  had  been  proposed,  by  one  of  the  defendants,  at  a  large  as- 
sembly in  another  part  of  the  country,  very  recently  held  for  the 
same  professed  object  and  purpose  as  were  avowed  by  the  meeting 
in  question,  that  defendant  having  acted  at  both  meeting  as  presi- 
dent or  chairman;  in  a  question  of  intention,  as  this  is,  it  is  most 
clearly  relevant  to  shew,  against  that  individual,  that,  at  a  similar 
meeting,  held  for  an  object  professedly  similar,  such  matters  had 
passed  under  his  immediate  auspices.  (2) 

It  would  not  be  allowable  to  shew,  on  the  trial  of  an  indictment, 
that  the  prisoner  has  a  general  disposition  to  commit  the  same  kind 
of  offence  as  that  charged  against  him.  Thus,  in  a  prosecution  for 
an  infamous  crime,  an  admission  by  the  prisoner,  that  he  had  com- 
mitted such  an  offence  at  another  time,  and  with  another  person, 
and  that  he  had  a  tendency  to  such  practices,  ought  not  to  be  re- 
ceived in  evidence.  (3) 

As,  in  trials  for  conspiracies,  whatever  the  prisoner   may   have  Actsand  dec- 
•  11         1  I      I     1  1    •  r  '^rations  of 

done  or  said,  at  any  meetmg   alleged   to   beheld   m   pursuance  of  prisoner  when 

the  conspiracy,  is  admissible  in  evidence  against  him,  on  the    part  ^|"^^"cefor 


iim. 


(1)  R.  V.  Hunt,  3  Barn.  &  Aid.  573,  ed,  and  proved  by  that  person  to  corres- 
574.  pond    with   the    resolutions     afterwards 

(2)  R.  V.  Hunt,  3  Barn.  &  Aid.  568,  read  at  the  meeting,  is  good  evidence  of 
572.  The  Court  of  King's  Bench  such  resolutions;  without  previous  notice 
also  decided,  in  this  case,  that  a  writ-  to  the  defendant  to  produce  the  paper, 
ten  paper,  delivered   by  the    defendants  from  which  they  were  read 

to  a    person  at  the    meeting,  fas  a   copy         (3)  R.    v.    Cole,   Mich.    term.    1810, 

of  the   resolutions   about   to  be   propos-  by  all  the  judges,  MS. 


^^2  Evidence  confined  to  points  in  Issue.         [Ch.  7. 

fcuofJS."  of  tlie  prosecution;  so,  on  the  other  hand,  any   other   part   of  his 
one'-.  conduct  at  the  same  meetings,  will  be  allowed  to  be  proved,  on  his 

behalf;  for  the  intention  and  design  of  the  parly,  at  a  particular 
time,  are  best  explained  by  a  complete  view  of  every  part  of  his 
conduct  at  that  time,  and  not  merely  from  the  proof  of  a  single  and 
insulated  act  or  declaration.  In  the  case  of  Walker  and  others,  (1) 
who  were  tried  for  n  conspiracy  to  overthrow  the  government,  evi- 
dence having  been  produced,  on  the  part  of  the  prosecution,  to 
shew  that  the  conspiracy  existed  and  was  brought  into  overt-act  at 
meetings  in  the  presence  of  Walker,  the  counsel  for  the  prisoners 
was  allowed  to  ask  a  witness,  whether,  at  any  of  these  times,  he 
had  ever  heard  Walker  utter  any  word  inconsistent  with  the  duty 
of  a  good  subject?  The  question  was  opposed,  but  held  by  Mr. 
Justice  Heath  to  be  admissible.  The  prisoner's  counsel  were  also 
allowed,  in  the  same  case,  to  inquire  into  the  general  declarations 
of  the  prisoner  at  those  meetings,  whether  the  witness  had  heard 
him  say  any  thing  that  had  a  tendency  to  disturb  the  peace  of  the 
kingdom;  and  questions  to  the  same  effect  were  put  to  many 
other  witnesses  in  succession. 

Partortho  ^^^^  question,  in  the  case  last  cited,  was  expressly  confined,  and 

transaciion       SO  required  by  the  Court  to  be,  to  the  conduct  of  the   prisoner   at 
proved  against    i  .      ,  .  i  •   i    i      ,  i  .,..,. 

him.  tnose  particular  meeinigs,  w[)ich  had  been  previously  mquired   into 

on  '.he  part  of  the  prosecution.  Proof  of  what  the  prisoner  might 
have  said  or  done  at  other  meetings,  or  at  other  times,  unconnect- 
ed with  the  transactions  proved  against  him,  would  not  have  been 
admissible  evidence  in  his  favor.  In  Lord  George  Gordon's  case,  (2) 
a  witness  w-as  asked  by  the  prisoner's  counsel,  on  cross-examina- 
tion, as  to  a  statement  made  by  the  prisoner,  on  the  night  before 
the  meeting  in  St.  George's  Fields,  and  with  respect  to  which 
meeting  much  evidence  had  been  produced.  This  was  objected 
to;  and  the  Court  decided,  that  the  question  was  not  regular. 
Lord  Mansfield  held,  that  as  the  counsel  for  the  crown  had  given 
evidence  of  what  the  prisoner  said  at  the  meeting  upon  the  29th 
May,  the  counsel  for  the  prisoner  might  shew  the  whole  connec- 
tion of  what  the  prisoner  said  besides  at  that  meeting;  but  that 
ihey  could  not  go  into  evidence  of  what  he  said  on  the  antecedent 


(1)    23   HoweTl,    1131,    nnd    sea    31         (2)  21  Howell's  St.  T.  R.  542. 
Howell'8  St  Tr.  48. 


Sect.  3.]     Evidence  confined  to  Points  in  Issue.  183 

day.      And  in  Hanson's  case,  (1)  on  a  charge  for  pronfiollng  a  riot,  Proof  of  other 
the  counsel  for  the  prisoner  was  not  allowed  to  prove  what  he  had  ^^^^°  '^"*' 

said,  privately  to  a  friend,  previous  to  his  going  to  the  place  of  riot, 

respecting  his   motive   in  going  thither.      And  many  other  cases 
might  be  cited  to  the  same  eflect. 

The  ride,  on  this  subject,  appears  to  have  been  extended  much  H.  Tooke'a 
beyond  the  line  here  laid  down,  on  the  trial  of  Home  Tooke.  (2)  ^^^^' 
In  that  case,  several  publications  were  given  in  evidence,  on  the 
part  of  the  crown,  containing  republican  opinions,  which  had  been 
distributed  by  the  prisoner  during  the  period  assignd  in  the  in- 
dictment for  the  existence  of  the  conspiracy;  and  this  evidence 
was  much  relied  on,  as  shewing  that  the  notion  of  a  reform,  which 
was  expected  to  be  set  up  by  the  prisoner  in  his  defence,  was  a 
mere  pretext  to  cover  his  treasonable  designs:  to  repel  this  conclu- 
sion, the  counsel  for  the  prisoner  ofiered  in  evidence  a  book,  wliich 
had  been  written  by  the  prisoner  twelve  years  before,  on  the  subject 
of  parliamentary  reform;  the  evidence  was  objected  to,  as  having 
no  relation  with  the  particular  transaction  in  question,  and  because 
the  prisoner's  opinions,  whatever  they  were  formerly,  might  have 
afterwards  changed.  But  the  Lord  Ch.  J.  Eyre  said,  that  the 
question  was  not  whether  this  book  had  a  reference  to  the  conspir- 
acy charged,  but  W'hether  it  had  not  reference  to  the  proof  given 
in  support  of  the  charge:  and  he  thought  it  evidence  to  rebut  the 
supposition,  that  the  reform  of  parliament  was  a  pretence  made  by 
iliu  prisoner.  The  book  w^as  accordingly  received  in  evidence. 
There  is  great  authority,  however,  for  doubting,  whether  such  ev- 
idence would,  on  revision,  be  considered  strictly  admissible.  (3) 
It  seems,  indeed,  reasonable,  if  some  other  acts  of  the  prisoner, 
besides  those  charged  in  the  indictment,  are  proved  against  him 
for  the  purrjose  of  shewing  his  design  in  the  affair  in  question, 
that  he  phould  be  allowed  to  explain  those  acts  by  proof  of  oth- 
er contemporaneous  particulars  of  his  conduct,  which  shew  thai 
he  had  a  different  design  from  that  imputed  to  him.  But  this 
limitation  (namely,  that  such  other  particulars,  offered  in  evidence 

(1)  31  Howell's  St.  Tr.  42S1.  point  by  Lord   Ellenborough,    C.  J.,    ia 

(2)  1  East,  P.  C.  62,  Gurncy's  Re-  R.  v.  Lambert  and  Perrv,  31  How- 
port,  vol.  ii.  36.  25  Howell's  St.  Tr.  ell's  St.  Tr.  355,  S.  C.  2  Campb.  N. 
345,  S.  C.  P.  C.  400. 

(3)  See    iho     observationi     on   this 


184  Evidence  confined  to  Points  in  Issue.     [Ch.  7. 

Proof  of  other  by  the  prisoner,  ought  to  be  contemporaneous  with  those  proved 
Tnlx!  ''"**  °"  *^'^  other  side,  or  at  least  confined  within  the  same  hmiis,  to 
which  the  evidence  on  the  part  of  the  prosecution  is  subject,)  ap- 
pears to  be  just  and  necessary;  for,  otherwise,  the  prisoner  would 
be  at  liberty  to  take  the  whole  range  of  his  life,  in  the  course  of 
which  his  character  and  his  designs  may  have  undergone  a  com- 
plete change. 

Hardy'icase.  in  Hardy's  case,  (1)  great  liberty  was  allowed  to  the  counsel 
for  the  prisoner,  in  examining  into  particulars  of  his  conduct, 
even  into  his  speculative  opinions;  and  perhnps  it  may  be  ques- 
tionable, whether  the  rule  was  not  carried  to  its  utmost  extent  in 
that  case.  The  question  there  put  to  the  witness  was  this: 
whether,  from  his  personal  acquaintance  with  the  prisoner,  he  had 
ever  heard  hinj  state,  what  was  his  plan  of  reform?  This  ques- 
tion was  objected  to.  The  overt-act  charged  was,  that  the  pris- 
oner, for  the  purpose  of  accomplishing  the  treason  of  compassing 
the  king's  deatii,  did  conspire  with  others  to  call  a  convention  of 
the  people,  in  order  that  the  convention  might  depose  the  king; 
and  the  counsel  for  the  prisoner  submitted,  that  for  the  purpose 
of  shewing  that  the  convention  was  intended  to  be  held,  not  with 
the  design  imputed  by  the  indictment,  but  >vith  an  innocent  de- 
sign, they  miglit  go  into  evidence  of  what  the  prisoner  had  at  oth- 
er times  declared,  inasmuch  as  the  counsel  for  the  prosecution  had 
gone  into  all  that  the  prisoner  had,  at  any  part  of  his  life,  declared 
touching  this  fact,  and  had  gone  also  into  evidence  of  what  other 
Lord  Russel's  members  of  the  corresponding  societies  had  said.  They  then  de- 
'"*■  fended    the  question   by  an  able  argument,  in  the  course  of  which 

several  cases  were  cited  from  the  State  Trials;  particularly  the 
case  of  Lord  Russel,  the  one  which  came  nearest  in  principle  to 
that  under  discussion,  wi.ere  the  charge  against  the  prisoner  was 
for  compassing  the  king's  death,  and  the  overt-act  was,  consult- 
ing to  raise  rebellion  and  seize  the  king's  guards;  and  Lord  Rus- 
sel, in  his  defence,  called  many  witnesses  to  speak  to  his  affec- 
tion towards  the  government,  and  his  detestation  of  risings  against 
it;  some  of  the  witnesses  gave  evidence  of  his  conversations  and 

(I)  24   Howell's  State   Trial?,  1065.     O'Connor,  27  Hcwell's  St.  Tr.    p,    31, 
1093.      See    trial     of    O'Coigiy     and    and  31  Howell's  St.  Tr.  1S9,  310. 


Sect.  3.]     Evidence  confined  to  Poiiits  in  Issue.  185 

sentiments   on  this   subject,    shewing   his  aversion   to  all  risings  of  Proof  of  other 

nets  01  DnsO" 

the  people:  Doct.  Burnet  andDoct.  Cox,  in  particular,  spoke  fully  ner. 
to  this  point,  and  without  any  objection  either  from  the  court  or 
from  the  counsel  for  the  prosecution.  After  the  question,  in 
Hardy's  case,  had  been  argued  at  some  length,  Lord  Ch.  J.  Eyre 
is  reported  to  have  tlius  addressed  himself  to  the  prisoner's  coun- 
sel, (1)  "  I  do  not  know  whether  you  can  be  content  to  acquiesce 
in  the  opinion,  that  we  are  inclined  to  form  upon  the  sul>ject,  in 
which  we  go  a  certain  way  with  you.  Nothing  is  so  clear,  as 
that  all  declarations  which  apply  to  facts,  and  even  apply  to  the 
particular  case  that  is  charged,  though  the  intent  should  make  a 
part  of  that  charge,  are  evidence  against  a  prisoner,  and  are  not 
evidence  for  him,  because  the  presumption,  upon  which  declara- 
tions are  evidence,  is,  that  no  man  would  declare  any  thing  against 
himself,  unless  it  were  true  ;  but  that  every  man,  if  he  were  in 
difficulty,  or  in  apprehension  of  any  difficulty,  would  make  decla- 
rations for  himself.  Those  declarations,  if  offered  as  evidence, 
would  be  offered,  therefore,  upon  no  ground  which  entitles  them 
to  credit.  That  is  the  general  rule.  But  if  the  question  be,  what 
was  the  political  speculative  0[)inion  which  this  man  entertained, 
touching  a  reform  of  parliament,  I  believe  we  all  think  that  opin- 
ion may  very  well  be  learned  and  discovered  by  the  conversations 
which  he  has  held  at  any  time  or  in  any  place."  (2)  The  ques- 
tion afterwards  put  to  the  witness,  was,  whether,  before  the  time 
of  the  convention  which  was  imputed  to  the  prisoner,  he  had  ever 
heard  from  him  what  his  objects  were,  and  whether  he  had  at  all 
mixed  himself  in  that  business.''  and,  in  answer,  the  witness  stated 
what  he  had  heard  from  the  prisoner  respecting  his  plan  of  re- 
form. (3) 

The  rule,  which  is  now  the  subject  of  discussion,  (namely,  that 
evidence  is  to  be  confined  to  the  points  in  issue,)  will  be  further 
illustrated  by  considering  the  effect  of  judgments  by  default  of  the 

(1)  24  Howell's  St.  Tr.   1094.  sel  to  one  of  the    wituesses,    nnd    allow- 

(2)  As  to  the  extent  of  this  rule,  to  od  to  be  answered,  was,  as  to  what 
conversations  "  at  amj  time"  howcv-  the  prisoner  had  declared  to  be  the 
er  remote;  see  supra,  p.  183.  object  of    the   correspondiug     societies? 

(3)  24  Ildwell's  St.  Trials,  p.  1097.  This  question  was  not  opposed.  lb. 
Another    question,    which    is    stated     to  p.  UOl. 

have   been  put   by  the  prisoner'e   coun- 

VOL.    I.  24 


186  Evidence  confined  to  Points  in  Issue.         [Ch.  7. 

payment  of  money  into  court,  and  of  particulars  of  demand  under 
a  Judge's  order.     First,  as  to  judgments  by  default. 

Judgment  by         ^  judgment  by  default  is  an  admission  of  the   cause  of  action, 
default.  Thus,  in  an  action  on   a   bill  of  exchange  against  the  defendant 

as  acceptor,  it  admits,  that  he  accepted  it,  and  that  the  bill  is  as 
stated  ill  the  declaration;  and  he  cannot  afterwards  shew,  on  the 
execution  of  a  writ  of  inquiry,  that  he  had  not  accepted  it  ;(1) 
nor  can  he  object  to  the  sufficiency  of  the  stamp,  on  which  the 
bill  is  drawn  ;  the  only  use  in  producing  the  bill  is,  for  the  pur- 
pose of  seeing  whether  there  is  any  indorsement  upon  it,  of  money 
having  been  paid.  (2)  So,  in  an  action  for  goods  sold  and  deliver- 
ed, or  for  money  had  and  received,  the  defendant,  by  suffering 
judgment  to  go  by  default,  admits  that  something  is  due;  and  he 
cannot  afterwards  dispute  the  contract  of  sale,  or  shew  fraud  on 
the  pa-t  of  the  plaintiff  in  making  the  contract;  (3)  but  the  plain- 
Judgment  on  tiff  will  only  have  to  prove  the  amount  due  to  him.  (x)  So,  on  the 
demurrer.  .  ~  .^..^.,  ,  ,, 

execution  ot  a  writ  oi  inquiry  alter  judgment  on  demurrer,  the  de- 
fendant cannot  controvert  any  thing  but  the  amount  of  the  sum  in 
demand:  as,  in  an  action  for  goods  sold  and  delivered,  to  which 
the  defendant  pleaded  coverture,  and  the  plaintiff  replied,  that  the 
defendant's  husband  had  resided  abroad,  and  that  the  defendant, 
d'.'ring  all  the  time,  &c.  had  carried  on  trade  as  a  feme  sole,  the 
Court  were  of  opinion,  that,  after  judgment  on  demurrer  to  this 
replication,  evidence  of  the  wife  having  acted  as  agent  to  the  hus- 
band ought  not  to  have  been  admitted  on  the  execution  of  the  writ 
of  inquiry;  that  the  only  question,  to  be  decided  by  the  jury,  was 
the  amount  of  the  debt,  and  that  the  question,  whether  the  debt 
had  been  contracted  by  the  defendant  as  agent  for  her  husband,  or 
in  her  separate  capacity,  ought  to  have  been  considered  as  deter- 
mined by  the  record.  (4)  *  (y) 

(1)  Greene  v.  Hearne,  3  T.    R.  301.  (3)  East  India   Company  v.  Glover, 
Bevis  V.  Lindfell.  2  Str.  1149.  1  Str.  612. 

(2)  3  T.  II.  302.    Billers  v.    Bowles,         (4)  De  Gailion  v.  L'Aigle,  1  Bos.  & 
Barnes'    Rep.    233.     Ellis  v.    Wall,  ib.  Pull.  368. 

234.     Bayley  on    Bills,  227;  and   Mills 
V.  Lyne,  385,  MS.  case  there  cited. 


*  After  judgment  by  defiult  against  ore  of  two  defendants,  the  plaintiff  may  elect 
to  be  nonsuited  on  the  trial  of  the  issue  joined  by  the  other  defendant.  Murphy  v. 
Doulan,  5  Barn.  &  Cress.  178. 


(z)  See  Note  355,  p.  466.     (y)  See  Note  356,  p.  466. 


Sect.  3.]     Evidence  confined  to  Points  in  Issue.  187 

Secondly,  as  to  naynsent  of  money  into  court.      Such  payment  Payment  of 
•'  '    •'  ''  ,  .  money  into 

is  in  general  an    acknowledgment    of  the  right  of  action  to  the  court. 

amount  of  the  particular  sum.  (1)*  And  as  it  is  an  acknowledg- 
ment on  record,  the  party  cannot  recover  it  back,  although  he  has 
paid  it  wrongfully  or  by  mistake.  (2)  It  is  an  admission  by  the  de- 
fendant, that  the  plaintiff  has  a  legal  demand  to  a  certain  extent. 
But  it  is  not  an  acknowledgment  beyond  that  amount,  and  will 
not  preclude  the  defendant  from  taking  any  objection  to  the  action 
with  respect  to  any  other  part  of  the  demand,  to  which  the  pay- 
ment of  the  money  does  not  apply,  although,  if  no  money  had 
been  brought  into  court,  the  objection  might  have  been  a  bar  to 
the  whole  demand.  (3) 

Where  there  is  a  count  on  a  special  contract  together  with  mon-  Special  con- 
ey counts,  payment  of  money  generally  upon  the  whole  declara-  mon 'cmints°™* 
tion  is  an  admission  of  the  contract  on  every  count,  to  w^iich  the 
contract  is  in  its  nature  applicable  ;  and  after  such  an  admission, 
the  defendant  will  be  precluded  from  disputing  the  existence  of  the 
contract  as  stated. (4)  Thus  in  the  case  of  Cox  v.  Brain,  (5) 
where  the  declaration  stated  a  specific  bargain  to  pay  a  particular 
sura  of  money  for  certain  articles,  a  general  payment  of  part  of  the 
money  into  Court,  by  admitting  the  bargain,  admitted  also  the  sum 
which  was  originally  due  ;  and  the  only  question  that  could  be 
raised  after  that  admission,  would  be,  whether  the  remainder  of 
the  money  had  been  previously  paid.  If  the  contract  had  been  to 
pay,  not  any  particular  price,  but  the  average  price  at  which  such 
articles  were  sold,  to  be  ascertained  by  a  certain  time,  a  general 
payment  of  money  into  Court  would  not  have  admitted  the  amount 
of  the  breach  as  stated  in  the  declaration,  though  it  would  admit 
a  cause  of  action  on  each  count,  and  something  due  on  each  of  the 
breaches  :  the  contract  is  admitted,  but  not  the  averment  of  the 
average  price.  (6)  {z) 

(1)  5    Burr.    2640.     1    T.    R.    465.     106.  Blackburn   v.  Scholes,    2    Campb. 
2  East,    134.     1    Barn.    &    Cress.  4.  3     341. 

Barn.  &  Cress.  10.  (4)    Bennet    v.    Francis,    2    Eos.  & 

(2)  Vaughan   v.    Barnes,    2   Bos.    &     Pull.  550. 

Pull.  392.     Malcolm   v.    Fullarton,  2  T.  (5)3  Taunt.    95.     2   Barn.    &    Aid. 

R.  645.  lis. 

(3)  Cox  V.   Parry,    1     T.    R.    464.  (6)  Stoveld  v,   Brewin,   2   Barn.  & 
Mellish  V.   Allnut,   2   Maule    &   Selw.  Aid.  116. 


*  And  the  plaintiff  may  elect  to  be  nonsuited,   after   payment  of  money  into  court 
by  the  defendant.     Cotterel  v.  Apsey,  6  Taunt.  324. 


{z)  See  Note  357,  p.  467. 


188 


Evidence  confined  to  Points  in  Issue.       [Ch.  7. 


Pajmeiit    into 
court. 

Common 
couuts. 


Bill  of  ex- 
change. 


Covenant. 


Jurisdiction  of 
court. 


Policy. 


Sale  by  sam- 
ple. 


Agreement  to 
pay    another's 
debt. 


In  an  action  of  apsiimpsit  for  goods  sold  and  delivered,  and  on 
the  money  counts,  to  which  the  defendant  pleads  the  general  issue, 
and  the  statute  of  limitations,  payment  into  court  generally  does 
not  lake  the  case  out  of  the  statute.  (1) 

In  an  action  on  a  bill  of  exchange,  tlie  defendant  by  paying  mo- 
ney into  court  generally,  dispenses  with  the  regular  proof  ol"  the 
party's  hand-writing,  (2)  and  cannot  object  to  the  sufficiency  of 
the  stamp  on  which  the  bill  is  drawn.  (3)  So,  in  an  action  of 
covenant,  he  admits  the  execution  of  the  deed.  (4)  On  the 
saine  principle,  payment  of  money  into  court  admits  the  plaintift^'s 
right  to  sue  in  that  court;  (5)  it  admits  also  the  title  on  which  he 
sues,  as,  for  instance,  his  being  a  surgeon,  (6)  or  farmer  of 
tithes,  &.C.  (7) 

Where  the  defendant  has  paid  money  into  coiu't  generally,  upon 
a  declaration  containing  a  count  on  a  policy  of  insurance  together 
with  money  counts,  he  will  not  afterwards  be  permitted  to  shew, 
that  the  policy  was  originally  different,  and  has  been  altered  by 
the  broker  without  his  knowledge.  (8)  {a) 

In  an  action  to  recover  the  amount  of  the  sale  of  goods,  which 
have  been  sold  by  sample  at  a  particular  price,  the  defendant  will 
not  be  allowed  to  shew,  after  such  general  payment  into  court, 
that  the  goods  were  of  a  quality  inferior  to  the  sample.  (9) 

In  an  action  upon  a  promise  to  pay  another  person's  debt,  the 
defendant  cannot  insist,  after  paying  money  into  court,  on  the  count 
charging  him  with  such  promise,  that  the  promise  is  not  binding, 
because  not  written  and  signed,  as  the  statute  of  frauds  directs  ; 
for  he  has  admitted  the  agreement  to  be  binding  to  a  certain  extent, 
and  disputes  only  the  amount  of  the  debt.  (10) 


(1)  Long  V.  Grevillc,  3  Barn.  & 
Cre-s.   10. 

(2)  Gutteridge  v.  Smith,  2  H.  Bl. 
374.  Middleton  v.  Brewer,' Peake,  N. 
P.  C.  15. 

(3)  Israel  v.  Benjamin,  3  Campb. 
40. 


(6)  Lipscombe  v.  Holme3,  2  Campb. 
441. 

(7)  Broadhurst  v.    Baldwin,    4  Price, 
5S. 

(8)  Andrews    v.    Palsgrave,  9   East, 
325. 

(9)  Leggett  v.     Cooper,    2   Starkie, 


(4)  Radnal    v.    Lynch,    2    Campb.     N.  P.  C  103. 
357.     Watkina     v.    Towers,    2   T.    R.         (10)   Ramsbottom  v.  Brewer,  Peakc, 
275.  N.  P.  C.  15. 

(5)  Miller   v.    Williams,    5   Esp.  N. 
P.  C.  19. 


(a)  See  Note  358,  p.  469. 


Sect.  3.]     Evidence  conjined  to  Points  in  Jssue.  189 

Payment  of  money   into  court  is  an   admission  only  of  a   legal  Payment  into 

demand.     If  the  contract  declared  upon  be  illegal,  the   defendant 

cannot    give    it   validity    by    his    admission;  no   admission  of  the  IHeguI  con- 
parties    will    oblige    the    court  to  give   effect  to  an   illegal  trans- 
action, (1) 

Although  payment  of  money  into  court  admits  the  contract, 
that  is,  the  entire  consideration  for  the  act  and  the  entire  act 
which  is  to  be  done  for  such  consideration,  yet  it  will  not  be  an 
admission  of  other  parts  of  the  contract,  which  are  distinct  and  col- 
lateral, respecting  the  liquidation  of  damages  after  breach  of  the 
contract.  (2)  If  indeed  ilie  provision  is  of  such  a  nature  as  will 
discharge  the  defendant  fronj  all  liability  under  the  contract,  unless 
the  plaintiff  has  complied  with  the  condition,  (as  was  the  case  in 
Clay  V.  Willan,  (3)  where  the  goods  were  not  to  be  accounted  for 
to  any  amount,  unless  properly  entered  and  paid  for,)  that  will  not 
merely  operate  in  reduction  of  the  damages,  but  in  bar  of  the  ac- 
tion; and  therefore,  in  such  a  case,  if  the  defendant  pays  money 
into  court  on  a  declaration  against  a  carrier  in  the  conmion  form, 
he  cannot  afterwards  give  in  evidence  such  a  provision,  which  en- 
tirely negatives  the  contract  as  stated  in  the  declaration. 

Payment  of  money  into  court  ought  to  be  proved  by  the  produc-  Proof  of  pay- 
tion  of  the  rule  of  court,  or  by  the  office  copy  of  the  rule.     It  will 
not  be  sufficient  to  call  the  attorney,  who  has  taken  the  money  out 
of  court.  (4)      The  production  of  the  rule  by   the   defendant   does 
not  entitle  the  plaintillto  a  reply.  (5) 

Thirdiv,  as  to  bills  of  particulars. — It  has  been  before  mention-  „.„    - 

•       .  .  '  Bill  of  parlic- 

ed,  that  a  bill  delivered,  by  an  attorney  to  his  client  for  business  ulars. 
done  during  a  certain  period,  or  to  a  tradesman  for  goods  sold,  is 
strong  presumptive  evidence  against  any  additional  item  within 
the  same  period.  The  party  is  not  however  precluded  from  shew- 
ing, that  items,  included  in  a  subsequent  bill,  have  been  otnitted 
by  mistake  in  the  former  bill,  and  that  the  business,   which  is   the 

(1)  Ribbansv.  Cricket,  1  Bos.  -k  40.  As  to  the  commencement  of  the 
Pull.  264.     2  East,  134.  practice  o(  paying  money   into  court,  see 

(2)  See  Clarke  v.  Fray,  fi  East,   564.  2H.  Bl.  376;  1  Ld.  Raym.  254. 

(3)  1  H.  Bl.  298.     6  East,  574.  (5)  2  Taunt.  267. 

(4)  Israel   v.    Benjamin,    3   Campb. 


190  Evidence  confined  to  Points  in  Issue.    [Ch.  7. 

Bill  of  panic-  subject  oi  the  charge,  has  been  done  by  bim  for  the  defendant.     A 
_! '. bill  of  particulars,  delivered  under  a  judge's  order,    is   more   con- 
Its  effect,         elusive;  its  sole  object  is  to  inform  the  opposite  party  of  what  he 
ought  to  come   prepared  to   try;  and  it  will  effectually    preclude 
the  party,  who  delivers  it,  from  giving  evidence  of  any   other  de- 
mand not  there  stated.  (6) 

Confined  to  Thus,  where  a  declaration  contained  a  count  for  money  had 

part  01  demand  .  -  .     .    , 

and  received  for  the   plaintiff's  use,  and  also  a  demand  for   horses 

sold  by  the  plaintiff  to  the  defendant  himself,  and  the  bill  of  partic- 
ulars specified  the  demand  alone,  it  was  decided  that  the  plaintiff 
could  not  give  evidence  of  horses  being  sold  by  the  defendant  as 
the  plaintiff's  agent;(l)  for  a  contract  for  the  absolute  sale  of  hor- 
ses to  the  defendant  is  essentially  different  from  a  contract  to  repay 
money  received  on  a  sale  of  horses  by  commission;  and  the  pro- 
ceeds of  such  a  sale  by  the  defendant  could  only  be  recovered  under 
the  count  for  money  had  and  received,  which  the  plaintiffabandon- 
ed  by  confining  his  bill  of  particulars  to  the  demand  stated  in  the 
other  count. 

Where  the  declaration  contains  a  count  on  a  promissory  note, 
together  with  money  counts,  and  the  particular  of  demand  includes 
only  the  note,  the  plaintiff  will  not  be  allowed  to  prove  the  consid- 
eration for  which  the  note  was  given,  in  order  to  recover  under  the 
money  counts;  and  if  he  cannot  recover  upon  the  note  on  account 
of  the  want  of  a  proper  stamp,  he  will  be  nonsuited.  (2) 

Second  partic-       Although  the  plaintiff,  on  perceiving  the  defect  of  his  first  par- 
ticular of  demand,  which  only  mentions  the   promissory  note,  de 
livers  a  second  bill  of  particulars  large  enough  to  comprehend  the 
original  debt,  yet  this  will  not  avail  him,  unless  the  second    partic- 
ular has  been  delivered  under  a  Judge's  order.  (3)  (c) 

not  abridged         On    the    Other   hand,   if  the   plaintiff,  'either   before    or  after 

by  demand,     delivering  a  bill  of  particulars  under  a  Judge's  order,   makes  a 

demand  of  payment  only  for  a   part  of  the   articles   specified    in 

(1)  Holland  v.  Hopkins,  2  Bos.  &  (2)  Wade  v.  Beasley,  4  Esp  N.  P. 
Pull.  243.  C.  7. 

(3)  Brown  v.  Watts,  1  Taunt.  353. 


(6)  See  Note  355,  p.  469.     (c)  See  Not©  860,  p.  469. 


Sect.  3.]     Evidence  confined  to  Points  in  Issue.  191 

the  bill,  such  a  demand  will  not  have  the  effect  of  confining  him  Bill  of  panic- 
in  his  evidence,  nor  supersede  the  bill  of  particulars.  (I)  '. 


In  an  action  on  a  note,  if  the  plaintiff  is  entitled  to  recover  the  Interest  on 

.  .  .  ^  note, 

principal  sum  due,  he  may  recover  interest  also,  as  arismg  out  of 

the  principal  and  incident  to  it,  though  it  has  not  been  specifically 

claimed  in  the  particular  of  demand.  (2) 

In  an  action  of  assumpsit,  where  the  defendant  pleaded  in  abate-  Particular 
ment,  that  the   promises  were  made  by  himself  and    another   per-  against  de- 
son  jointly,  on  which  plea  issue  was  joined,  and  on  the  trial   it  ap-  Pendant, 
peared  from   the  bill  of  particulars,  that  some  of  the  articles  had 
been  furnished  to  the   defendant  jointly  with   the  person  named  in 
the  plea.  Lord  Kenyon  C.  J.  held  that  the  plaintiff  was  bound  by 
his  bill  of  particulars,  which  supported   the  defendant's   plea:  and 
therefore  he  nonsuited  the   plaintiff.  (3)      Here  the  articles  stated 
to  have  been  furnished  on  the  joint  credit  of  the  defendant  and  an- 
other  person,  were   items  of  the   plaintiff's  demand;  and  were  a 
necessary  part  of  his  bill  of  particulars,  if  he  intended   to  recover 
for  them,  {cl) 

The  use  of  a  bill  of  particulars  is  to  prevent  the  inconveniences  Error  in  par- 
which  might  otherwise  arise  from  the  general  and  undefined  state- 
ments in  the  plaintiff's  declaration,  and  to  apprise  the  defendant 
of  the  particulars  of  the  demand,  which  the  plaintiff  has  against 
him.  (e)  If  it  gives  sufficient  information  to  the  opposite  party  to 
guard  him  against  surprise,  it  answers  the  purpose  for  which  it  was 
intended,  and  will  be  sufficient,  though  it  may  be  in  some  respects 
inaccurate.  (/) 

Thus,  in  an  action  of  assumpsit  for  money  paid  to  the  defendant's 
use,  where  in  the  bill  of  particulars  an  item  for  money  advanced 
was  by  mistake  written  under  the  natne  of  A.  B.,  instead  of  being 
written  under  that  of  C  D.  in  another  part  of  the  particular,  and 
this  appeared  to  have  been  advanced  to  the  former.  Lord  Ellen- 
borough  allowed   the   plaintiff  to  prove,  that  the   item  in   question 

(1)  Short  V.  Edwards,  1  Esp.  N.  P.  (3)  Colson  v.  Selby,  1  Esp.  N.  P. 
C.  373.  C.  451.     A   rule   to  set   aside  the  non- 

(2)  Blake  v.  Lawrence,  4  Esp.  N.  P.  suit  was  afterwards  refused  by  the 
C.  147.  Court. 

(d)  See  Note  361,  p.  469.     (e)  See  Note  362,  p.  470.    (/ )  See  Note  S63,  p.  471. 


192  Evidence  confined  to  Points  in  Issue.      [Ch.  7. 

Bill  of  pariic-    was  intended,  and  must  have  been  understood,  to  refer  to  tlie  latter 

__! \ name,  but  by  mere  clerical  error  had  been  misplaced;  and   that  if 

Clerical  error,  iijg  defendant  could  shew  by  affidavit,  that  he  had  been  misled  by 
the  plaintiff' 's  panictiliir,  it  might  furnish  a  ground  for  the  Court 
Error  in  date,  afterwards  to  set  aside  ti;at  pariiculnr  sum.  (1)  So  where  the 
work  for  which  the  action  was  brought  was  stated  by  the  i)articu- 
lar  to  have  been  done  in  a  wrong  month,  when  in  fact  no  work 
had  been  done,  the  plaintiff  was  allowed  to  give  evidence  of  his 
having  done  work  for  the  defendant  in  the  oilier  month.  (2) 

In  the  case  of  Hurst  v.  Watkis,  which  was  an  action  brought 
by  one  partner  against  another  to  recover  a  balance  due  on  a 
statement  of  accounts,  and  on  Vv'hich  ilie  bill  of  particulars  was 
confined  to  the  balance  due  on  separate  accounts,  the  plaintiff,  in 
support  of  this  demand,  gave  in  evidence  an  account,  in  wliich  the 
defendant  made  himself  debtor  to  a  certain  amount,  and  the  de- 
fendant in  answer  to  this  evidence  produced  an  account  subse- 
quently rendered  by  the  plaintiff,  according  to  which  there  appear- 
ed to  be  a  balance  due  to  the  defendant  on  the  separate  accounts; 
but  on  the  opposite  side  of  the  page,  there  was  a  statement  also  of 
the  partnership  accounts,  on  which  the  balance  was  in  favor  of  the 
plaintiff,  and  greatly  exceeded  the  balance  on  the  separate  account. 
It  was  objected  that  the  plaintiff  could  not  recover  beyond  his  par- 
ticular: the  Court  however  said,  that  the  defendant  himself  had 
given  the  plaintiff  a  better  case  than  he  was  at  liberty  to  make  for 
himself,  and  that  the  plaintiff  was  entitled  to  a  verdict  for  all  that 
had  been  proved  to  be  due  to  him.  (3)  The  parties  afterwards 
came  to  a  compromise,  and  agreed  upon  the  sum  to  be  recovered- 
It  is  to  be  observed,  that  there  were  peculiar  circumstances  in  thia 
case;  the  written  paper,  which  the  defendant  gave  in  evidence,  as 
the  writing  of  the  plaintiff,  could  only  have  been  admitted  as  one 
entire  writing,  the  whole  to  be  taken  together,  and  was  not  adniis- 
sible  merely  in  parts:  the  defendant  could  not  use  in  evidence  the 
separate   account  of  the  plaintiff,  without  admitting  also  the  part- 

(1)  Day    V.    Cower,    1     Canipb.    69,  ings,  bad  been  misdescribed   in  tho  par- 

n.     Brown  v.    Hodgson,  4   Taunt    198.  ticular;  but  the  objection   was   overrul- 

See  also    Davies   v.   Edwards,    3   Mauie  ed. 

&   Selw.  380,  an  action  of  debt  to  re-  (2)  Millwood    v.    Walter,    2   Taunt, 

cover  rent,    where    the    locality    of  the  224. 

premises,   not   described  in    tho   plead-  (3)  Hurst  v.    Watkis,  1    Carnpb.  68. 


Sect.  3.]     Evidence  confined  to  Points  i?i  Issue.  193 

nership  n         ..:      -lich  was   wi'iLteii  by  him  on  the   same  paper,  ^''1  o^r='-^t'c- 

since  ths  one  part  might  have  explained  or  refened  lo  the  other; 

and  if  the  statement  of  a  party  is  given  in  evidence  against  him- 
self, the  whole  of  the  statement  ought  to  be  received,  though  all 
its  parts  may  not  deserve  the  same  credit.  But  it  appears  to  be 
too  much  to  infer  generally  from  the  authority  of  this  case,  that, 
because  the  evidence,  adduced  by  the  defendant,  discloses  other 
items,  which  rr.ight  have  been  included  in  the  bill  of  particulars, 
the  plaintifi*  ought  therefore  to  recover  on  these  items,  as  well  as* 
upon  those  which  are  specifically  mentioned.  The  case  in  ques- 
tion mu3l  ba  cor  :  Jered  as  a  pariicular  exception,  and  not  as  es- 
tablishing a  rule  of  so  wide  and  general  a  nature.  The  plaintiff, 
it  is  presumed,  can  neither  cross-examine  the  defendant's  witnesses 
to  any  claim,  which  he  has  not  comprehended  in  his  particular  of 
demand,  nor  can  he  at  the  trial  avail  himself  of  any  such  claim, 
though  disclosed  by  the  witnesses  on  the  other  side  in  their  exam- 
ination in  chief,  (g) 

An  order  for  particulars  of  a  set-off  calls  upon  the  defendant  to  Deliyery  of 
deliver  the  particulars  within  a  limited  time,  and,  in  default  there- 
of, expressly  precludes  him  from  giving  evidence  in  support  of  his 
cross-demand.  This  is  the  general  form  of  such  an  order.  (1)  (A) 
If  it  does  not  specify  a  certain  day,  before  which  the  particulars 
are  to  be  delivered,  but  only  requires  them  to  be  delivered  forth- 
with, and  they  are  not  delivered  till  many  days  after,  so  as  to  em- 
barrass the  plaintiff  for  want  of  time,  he  has  a  remedy  by  applying 
to  the  Court,  and  he  ought  not  to  wait  till  the  time  of  trial  before 
he  objects  to  the  lateness  of  the  delivery;  by  accepting  the  partic- 
ulars, and  not  making  an  app]ic::tlcri  to  the  Court,  he  waives  the 
objection.  (2)  (i) 

The  particulars  of  demand  are  proved  by  the  production  of  the  Proof  of  pc-.- 
Judge's  order,  and  by  proof  of  the  delivery  of  the  particulars;  and 
this  delivery  will  be  sufficiently  proved   by  proving  the  signature  of 
the  party's  attorney,  or  of  his  agent,  on  the  particulars.  (J) 

(1)  See  form,  in  Tidd.  App.  ch.  22.         (2)  Lovelock    v.   Chiveley,   Holt,   N. 
a.  10.  P.  C.  652. 


(g)  See  Note   364,  p.  474.     (A)  See  Note  365,  p.  474.     (i)  See  Note  366,  p. 
474.     (;■)  See  Note  367,  p.  475. 

Vol.  I.  25 


194  Affirmative  of  Issue  Proved.  [Ch.  7. 

Sect.  IV. 
The  JJJirmalive  of  the  Issue  to  be  proved. 
There  are  several  general  rules,  of  great  use  in  ascertaining 
whether  the  plaintiff  or  defendant  will  have  to  prove  the  issue  on 
the  record.  One  of  the  n}ost  useful  of  these  is  the  rule,  which  has 
been  taken  as  (he  subject  of  the  present  section,  namely,  that  the 
point  in  issue  is  to  be  proved  by  the  party  who  asserts  the  affirma- 
tive; according  to  the  maxim  of  the  civil  law.  "  Ei  incumbit pro- 
balio  qui  (licit,  non  qui  negat.''^  (1)  (/c)  A  few  instances  wiil  be 
sufficient  to  illustrate  this  rule. 

Action  for  loss  Ju  an  action  for  a  loss,  occasioned  by  barratry  in  the  master  of  a 
ship,  where  it  was  objected  by  the  defendant,  that  the  plaintiff 
»  ought  to  prove,  that  the  master  was  not  also  the  owner  or  freighter, 
and  that  he  did  not  act  under  the  direction  of  the  person  who  was, 
(in  vvhich  case  barratry  could  not  be  committed,)  the  Court  held, 
that,  if  the  master  was  owner  or  freigiiter,  or  acted  under  the  di- 
rection of  the  owner,  the  burthen  of  proving  that  fact  lay  on  the 
defendant.  (2)  "  It  was  not  incumbent  on  the  plaintiff,"  said  Mr. 
Justice  Buller,  "  to  prove  that  the  captain  was  not  the  owner,  for 
that  would  be  calling  on  him  to  prove  a  negative;  and  if  the  cap- 
tain were  not  the  owner,  it  is  immaterial  who  v*'as;  proof  of  that 
fact,  which  operates  in  discharge  of  the  other  parly,  lies  upon 
him."  (Z) 

Plaintiff's  en-       But  although  it  may  lie  on  the  defendant   to   prove   an  affirma- 

iir«  case  to  lie  tive,  vet    the    plaintiff,  if  he    has    notice  of  the   defence,    cannot 
proved.  j  i 

defer  the   concluding  of    his   entire   case  until  the  affirmative   is 

first  established.  Thus,  if  the  plaintiff  bring  an  action  against 
the  defendant  for  some  act  done  by  him,  and  the  defendant  plead 
the  general  issue,  and  in  bar  of  the  action  plead  further  an  , 
illegal  act  done  by  the  plaintiff,  such  as  would  justify  the  de- 
fendant in  doing  the  act  which  is  the  subject  of  the  suit,  here  tlie 
plaintiff  will  have  to  prove  the  whole  of  his  case  in  the  first  in- 
stance; he  ought  not  only  to  prove  his  right  of  action,  but  also 
TreipaBfl.  negative  the  act  imputed  to  him  by  the  defendant's  plea.  'J'hus, 
in  the  case  of  Rees  v.  Smith,  (3)  which  was  an  action  of  trespass 
for    breaking    into    the    [)laintiff's  house,   and   seizing   his  goods, 

(1)  Justin.  Pand.  Lib.  22,  Tit.  3.  De  (2)   Ross  v.  Hunter,  4  T.  R.  33,   39. 

Piobationibus,  Art.  1,  2.  (3)  2  StarUie,  N.  P.  C.  SO. 


(&)  See  Note  368,  p.  475.     (/)  See  Note  369,  p.  478. 


Sect.  4.]  Affirmative  of  Issue  Proved.  195 

and  t!ie  defendant  pleaded,  besides  the  general  issue,  a  fraudulent 
removal  of  the  goods  to  avoid  a   distress   for  rent,   the  plaintiff' at 
first  only  proved  the  trespass,  the  defendant  then  gave  evidence  in 
support  of  his  plea,  after  which  the  plainiiff's  counsel  offered  gen- 
eral evidence,  to  negative  the  supposition  of  a  fraudulent  removal, 
but  Lord  Ellenborough  rejected  the  evidence.   "  The  general  rule," 
he  said  "  is,  that  when  the  defence   is   known,   by  pleading,  or  by 
means  of  notice,  the  counsel  for  the  plaintiff"  is    l)Ound  to  open  the 
whole  case  in   chief,    and   cannot   proceed   in   parts.     If,"  added 
Lord  Ellenborough,   "  any  one  fact  be  adduced  by  the  defendant, 
to  which  an  answer  can  be  given,  the  plaintiff* must  have  an  oppor- 
tunity given  for  so  doing  :  but  this  must  be  understood  of  a  speci- 
fic fact:  he  cannot  go  into  general    evidence  in   reply   to   the  de- 
fendant's case.     There  is  no  instance,  in  which  the  plaintiff"  is  en- 
litled  to  go  into  half  his  case,  and  reserve  the  remainder. "(m) 

And  where  one  party   charges  another  with  a  culpable  omission  Charge  of 
or  breach  of  duty,  the  general  rule,  above  laid  down,  does  not^-^ap-  l^'eadiofduty. 
ply.     In  such  a  case,  the   person  who   makes   the  charge  is  bound 
to  prove  it,  though  it  may  involve  a  negative  ;  for  it  is  one  of  the 
first  principles  of  justice,  not  to  presume  that   a  person  has  acted 
illegally,  till  the    contrary   is    proved."  (n)     Thus,   in   a   suit  for  Reading  thirty 
tithes  in  the  Spiritual  Court,  where  the  defendant  pleaded,  that  the  "'""articles, 
plaintiff  had  not  read  the  thirty-nine  articles,  tlie  Court  called  on  the 
defendant  to  prove  the  fact,  though   a   negative  :  upon  which,  he 
moved  the  Court  of  King's  Bench  for  a  prohibition  ;  but  it  v/as  re- 
fused, for  the  reason  already  slated.  (1)     In  an  action  by  the  owner  PuttIn<Ton 
of  a  ship  against  the  defendants,  for  putting  on  board   a  nuanlitv  of  l'"^"' '=""'- 
combustible  and  dangerous  articles,  "  without  giving   due  notice 
thereof,"  the  Court  held,  that  it  lay  upon  the  plaintiff*  to  prove  this 
negative  averment.  (2)  (o)    In  an  action,  for  the  recovery  of  penal- 
ties, under  the  hawkers'  and  pedlers'  act,  (3)  against  a  person  charg- 
ed with  having  sold  goods    by  auction,  in  a  |)!ace  in  whicjj  he  U'as 

(I)  Monke    V.    Butler,    I    Roll.  Rep.     Bull.    N.    P.    r2i)3.)    R-?x^  v.    CombA, 
83,  cited     Iiy      Lord    Ellenljorough,    3     Comb.'ST.     Gilb.  Ev.  132. 
East,     199.   'Powell      v.      MilibaiiU,    2  (2)  VVilli.ini'?    v.    East    India   Corrip. 

Black.  Rep    851,  S.    P.     3    VVils.  355,     3  East,    193,   139.     Rex    v.    Hawkins, 
S.  C.    See    also   Lord    Halifax's    case,     10E:ist,  211. 

(3)  St.  29  G   3,  c.  26,  s.  4. 


(m)  Sea  Note  370,  p.  479.     (;i)  See  Note  371,  p   4S3.     (o)  See  Note  372,  p.  43P 


196 


Affirmative  of  Issue  Proved, 


[Ch.  7. 


Ccvcaant  to 
repair. 


,^..j 


not  a  householder,  .= :.  ro^f  of  il;!'?  nc^  ^i'^e, 

fendant  not  being  a  househck...  *■  lu  ihe  place,  vvouici  '-o  necessary 
on  the  part  of  the  plaintiff,  (p)  And  in  an  action  of  covenant 
against  a  lessee,  where  the  breach  is,  in  the  language  of  the  cove- 
nant, that  the  defendant  did  not  leave  the  prennises  well  repaired  at 
the  end  of  the  term,  the  proof  of  the  breach  lies  upon  the  plaintiff; 
this  breach,  though  in  terms  it  involves  a  negative,  admits  of  as 
easy  proof,  as  if  it  had  been  expressed  in  the  affirmative,  (q) 


Prc3ecr.tion 
for  coursing 
witliout  con- 
Bent. 


On  the  trial  of  an  indictment  on  the  statute  42  G.  3,  c.  107,  s.  1, 
which  makes  it  felony  to  course  deer  on  an  inclosed  ground  "  with- 
out the  consent  of  the  owner  of  the  deer,"  it  ought  to  appear  from 
the  evidence  produced  on  the  part  of  the  prosecution,  that  the 
owner  had  not  given  his  consent.  According  to  the  report  of  a 
late  case,  (I)  it  seems  to  have  been  thought  ncccss'iiy  to  call  the 
owner  of  the  deer,  for  the  Duroose  of  disproving  his  consent  ;  and 
th£  owner  not  being  cdled,  the  jury  were  directed  to  find  a  verdict 
of  acquittal.  The  particular  circumstances  of  that  case  are  not 
stated  in  the  report;  and  it  is  not  easy  to  discover  upon  what  prin- 
ciple such  evidence  was  held  to  be  indispensable.  If  the  circum- 
stances were  of  such  a  nature  as  to  raise  a  reasonable  presump- 
tion, that  what  had  been  done  had  not  been  done  illegally  (which, 
however,  it  is  difficult  to  conceive,)  then,  doubtless,  the  direct  evi- 
dence of  the  owner  would  be  necessary  to  repel  that  presumption, 
and  to  establish  the  charge  against  the  prisoner.  But,  as  a  gene- 
ral proposition,  it  may  be  safely  laid  down,  that  the  non-consent  of 
the  owner  may  be  properly  inferred  from  the  conduct  of  the  prison- 
er, and  the  circumstances  under  which  the  act  was  done,  such  as 
the  secrecy  of  the  proceedings,  the  attempt  to  conceal,  the  disguise 
of  the  prisoner,  or  his  resistance,  or  any  other  circumstance  of 
guih;  and  that  the  evidence  of  the  owner,  to  negative  the  suppo- 
sition of  his  consent,  is  not  more  strictly  necessary  to  this  prosecu- 
tion than  on  a  charge  of  larceny,  in  which  it  is  an  essential  ingre- 
dient, that  the  goods  sL'iuild  hsve  been  tr.ken  ac,aiiist  ihe  ownet  .i 
consent;  and  yet  the  owner  i^;  never  quesuoned  as  to  '.hixl  point, 
though  he  is  generally  called  to  prove  the  property,  (r) 


(1)  R.  V.    Rogers,    2   Cainpb.    654,     Mallinson,  2    Burr.    679.    R.  v.  Corden, 
by   Mr.    Justice  Lawrence.    See   R.  v.     4  Burr.  2279. 


(p)  See  Note  373,  p.  4S6.     (<?)  See  Note  374,  p.  486.     (r)  See  Note  375,  p.  487. 


"vYl-.ere  'ihj  pre.'.ia'ptiDr:  oT  1;  v;  i.-,  in  Aivor  of  the  defendant's  plea,  Presumption 
,  .        .  "     .  .     .  of  law. 

there  it  will   be  incumbent  on  the  plaintiff  to  disprove  the  plea, 
though  in  so  doing  he  may  have  to  prove  a  negative,  (s)   As,  in  an  Bond  twenty 
action  on  a  bond,  if  the   defendant   plead    payment,  and  the  bond  >'®^"<'''l- 
appears  to  have  been  outstanding  for  twenty  years,  the  law  pre- 
sumes that  the  principle  debt  has  been  discharged;  this  legal  pre- 
sumption of  itself  affords  a  defence,  in  support  of  the  plea;  and,  to 
repel  the  presumption,  it  will  be  necessary  for  the  plaintiff  to  pro- 
duce evidence,  from  which  the  contrary   presumption  of  non-pay- 
ment may  be  inferred;  such  as  evidence  of  payment  of  interest,  or 
of  an  admission  of  the  debt,  (t)      Where  the  question  is  on  the  le-  Legitimacy,, 
gitimacy  of  a  child,  if  a  legal  marriage  is  proved,  the  legitimacy   is  / 

presumed,  and  the  party,  who  asserts  the  illegitimacy,  ought  to 
prove  it:  {i-)(u)  but  if  there  has  been  a  divorce  a  mensa  el  thoro, 
the  presumptioq  is,  that  a  child  born  afterwards  (that  is,  beyond 
th?  tip.;?  of  j^.?^tntion,)  is  illegitiinnte;  (2)  it  will  be  sufficient, 
therefore,  in  such  a  cast;  to  provo  iI:-t  civcrcc;  and  this  will  call 
upon  the  opposite  party  to  establish  the  legitimacy  by  proof  of  ac- 
cess. («) 

Where  the  issue  is  upon  the  life  or  death  of  a  person,  the  proof  Death  presnm- 
of  the  fact  lies  upon  the  party  who  assorts  the  death,  for  the   pre-  ^^'  ^^'■^^  ^^^^ 

I  1  •  T  time, 

sumption  IS,  that  the  parly  continues  alive,    until  the  contrary   be 

proved.  (3)(tt>)  But  where  no  account  can  be  given  of  the  person  2  Bay,  476. 
this  presumption  of  the  duration  of  life  ceases  at  the  expiration 
of  seven  years  from  the  time  when  he  was  last  known  to  be  liv- 
ing; (4)  (a:)  a  period,  which  has  been  fixed,  from  analogy  to  the 
statute  of  bigamy,  (5)  and  the  statute  concerning  leases  determina- 
ble on  lives.  (6)*    Thus,  in  the  before-cited  case  ofDoe  v.  Jesson, 

(1)  See  ante,  p.  158.  (4)  Doe,  dem.  George,   v.    Jesson,    6 

(2)  Parishes  of  St.    George   and    St.     East,   80,    85.     Doe,    dem.    Lloyd      v. 
Mar,  .::.t,  1  Salk.  123.  Der.'.in.  4  Ban).  :•    Aid.    .'34.     Roe   v. 

i^ii)  Thro^.uur-njn    v.    ■^/falton,  2  Roll.     lias!-..;:;!,  1  r.:..c;.    -1j4. 
Rep   -IGl.     Wiltjcn  V.  ilovj^a^,    2    East,  (a)   Ht.  :.  J    'i,c.  ll,s.  2- 

312  (€)  St.  19  C.  2,  c.  6. 


*  The  statute  of  bigamy  contains  a  proviso,  that  "  it  shall  not  e.vtend  to  any  per- 
son, whose  husband  or  wife  shall  be  continually  remaining  beyond  the  seas  by  the 
space  of  seven  years  together,  or  whose  husband  or  wif^  shall  absent  himself  or 
herself,  the  one  from  the  other,  by  the  space  of  seven  j  ears  together  within  the 
king's  dominions,  the  one  of  them  not  knowing  the  other  to  he  living  within  that 
time."   It  has  been  held,  that  the  last  clause  (namely,  "  the  one  of  them  not  know- 


(s)  See  Note  376,  p.  487.  (i)  See  Note  377,  p.  488.   (w)  See  Note  378,  p.  488. 
(v)  See  Note  379,  p.  488.     (w)  See  Note  880,  p.  489.     (x)  See  Note  381,  p.  489. 


198 


Affirmative  of  Issue  Proved.  [Ch.  7. 


wliere  it  was  proved,  that  a  person  went  to  sea  at  a  |)articular 
time,  which  was  the  last  account  given  of  him,  his  death  was  pre- 
Plea  of  cover-  sumed  at  the  end  of  seven  years  from  that  time.  And  therefore, 
where  the  defendant  pleaded  coverture  in  bar  of  an  action  of  as- 
sumpsit, and  proved  her  marriage,  and  that  her  husband  went 
abroad  twelve  years  before  the  commencement  of  the  action,  this 
.  was  held  not  to  be  sufficient,  and  the  defendant  was  required  to 
prove  that  iier  husband  was  alive  witiiin  seven  years;  (1)  without 
such  additional  proof,  the  jury  might  have  presumed  the  death  of 
the  husband  at  the  time  of  the  promise,  which  would  have  been 
against  the  defendant's  plea,  (j/) 


Receipt  of 
notes. 


Fact  peculiar-  It  is  a  general  rule  of  evidence,  that  the  burthen  of  proof  lies 
ifnovvlcdU  of  °"  ^'^*^  person,  who  has  to  support  his  case  by  proof  of  a  fact 
a  party.  which  lies  more    peculiarly    within    his   own    knowledge,    or    of 

which  he  is  supposed  to  be  cognizant.  (2)  In  an  action  by  the 
assignees  of  a  bankrupt,  where  the  defendant,  under  a  notice  of 
set-off,  gave  in  evidence  promissory  notes  dated  before  the  bank- 
ruptcy, the  Court  held  that  he  ought  also  to  show,  that  the  notes 
came  to  his  hands  before  that  time.  (3)  In  an  action  on  the 
game  laws,  though  the  plaintiff  must  aver,  in  order  to  bring  the 
Qualification,  defendant  within  the  act,  that  he  was  not  duly  qualified;  yet  it 
is  not  not  necessary  to  disprove  his  qualifications;  but  it  will  be  for 
the  defendant,  if  he  can,  to  prove  himself  qualified.  (4)  And  it 
has  lately  been  determined  by  the  Court  of  King's  Bench,  that 
the  same  lule  of  evidence  applies  as   well  to   proceedings   on   in- 

(i)  Hopewell  V.  De   Pinna,  2  Camp.         (4)  By  Lord  Mansfield,  in  Spieres    v. 

13.     Doe,  dem.  Banning,  v.    Griffin,  15  Parker,  1  T-  Pv..  144.     Duller,  J.  in  1  T. 

East,  293,  stated  infra.  R.  649      Heatli,  J.  in  Jelfs    v.    Dullard, 

(2)  4  Barn.  &  Aid.  140,  vid.  infra,  1  Boss.  &  Pull.  46S.  Chambre,  J  in 
Beet.  6.  9  Price,  257.  5  Maule  &  Frontine  v.  Frost,  2  Bos  &  Pull.  307, 
Selw.  211.  1  Barn.  &  Cress.  150.  3  ndin.  per  Cur.  in  R.  v.  Stone,  1  East, 
Barn.   &  Cress  242.  650. 

(3)  Dickson  v.  Evans,  1  T.  R.  57- 
See  other  examples  in  criminal  cases,  in 
2  East,  P.  C.  782 

ing,"  &c.)  relates  only  to  the  second  clause,  and  not  to  the  first  respecting  commo- 
rancy beyond  the  seas:  and,  consequently,  that  the  second  marriage  is  not  feloni- 
ous, where  either  of  the  parties  is  beyond  the  seas  for  seven  years,  though  the  par- 
ty in  this  country  had  notice  that  the  other  was  living.  3  Inst.  8S.  1  Hal.  P.  C.  692. 
4  Bl.  Com.  164. 


iy)  See  Note  382,  p.  490. 


Sect.  4.]         Affirmative  of  Issue  Proved.  199 

formations  before  magistrates,  as  to  actions  for  penalties;  and  that 
a  conviction,  which  specifically  negatives  the  several  qualifications 
mentioned  in  the  statute,  is  sufficient,  without  stating  evidence  to 
negative  those  qualifications.  (1)  If  such  negative  evidence  were 
necessary  to  support  the  information,  it  would  scarcely  be  possible 
in  any  case  to  convict,  in  consequence  of  the  great  number  of  dis- 
tinct heads  of  qualification,  which  are  enumerated  in  the  statute. 
On  the  other^^hand,  all  the  qualifications  specified  are  peculiarly 
vvhhin  the  knowledge  of  the  qualified  person.  If  he  is  entitled  to 
any  such  estate  as  the  statute  requires,  he  may  prove  it  by  his  title 
deeds,  or  by  the  receipt  of  the  rents  and  profits;  or  if  he  is  the  son 
and  heir  apparent,  or  servant  to  any  lord  or  lady  of  a  manor,  and 
appointed  to  kill  game,  that  will  be  a  good  defence.  All  these 
qualifications  are  peculiarly  within  the  knowledge  of  the  parly 
himself;  but  the  prosecutor  has  probably  no  means  of  proving  a 
disqualification,  {z) 

Although,  in  general,  it  is  necessary  for  a  party,  who  brings  an 
action,  to  prove  all  the  material  facts,  which  he  alleges  in  support 
of  his  claim,  yet  where  the  defendant  pleads  a  fact  within  his  own 
knowledge  in  discharge  of  himself,  and  the  plaintiff  still  insists  on 
the  defendant's  liability,  alleging  the  same  fact  in  his  replication, 
there  the  burthen  of  the  proof  lies  on  the  defendant,  not  upon  the 
plaintiff.  Thus,  in  an  action  of  assumpsit,  where  the  defendant  p]ea  of  in- 
pleaded  infancy,  and  the  plaintiff  replied,  that  "  the  defendant,  af-  fancy, 
ter  he  had  attained  his  full  age,  ratified  and  confirmed  the  promise 
and  undertaking,"  the  Court  held,  that  the  mere  proof  of  a  promise 
to  pay  was  sufficient  on  the  part  of  the  plaintifl";  and  that  it  was 
for  the  defendant  to  prove  the  personal  incapacity  to  contract,  on 
which  he  grounded  his  defence,  and  which  lay  so  peculiarly  within 
his  own  knowledge.  (2)  (a) 

On   a   trial   for  bigamy,  the  register  of  the  first  marriage   being  Pro3.  for 
produced,  which  stated  the  marriage  to  be  by  licence,  without  stat- 
ing it  to  be  by  consent  of  parents  or  guardians,  the  prisoner  in  his 
defence  proved,  that  he  was  an  infant  at  the  time  of  the  marriage; 

(1)  R.   V.  Turner,' 5  Maale  &  Sehv.  (2)  Borthwick  v.   Carruthers,    1  T. 

206.  R.  648. 


(2)  See  Note  383,  p.  490,     (a)  See  Note  384,  p.  491. 


200  TA-  Substance  of  Issue  Proved.         [Ch.  7. 

and  ii  was  held,  ''...■.  wy,  on  .'-e  part  of  tlje 

prosecution,  to  give  some  evidence  oi  me  oaiii^..^  . .-.[  .....j  l;  the 
marriage  act.  (1)  Any  subsequent  countenance  given  by  the  pa- 
rents or  guardians,  or  other  circumstances  of  a  similar  kiad,  might 
afibrd  ground  for  presuming  the  necessary  consent.  (2)  (6) 


Sect.  V. 

The  Substance  only  of  the  Issue  need  be  Proved. 

The  next  general  n  ic  to  le  ccnsiderecl  is,  that  en  any  issue  it 
will  be  sufficient  to  prove  the  substance  of  tha  issue. 

It  is  a  general  principle  of  evidence,  that  all  the  material  facts 
in  the  declaration,  which  are  put  in  issue,  must  be^established  by 
legal  proof,  (c)  Another  principle  is,  that  the  nature  and  extent 
of  the  proof  will  depend  upon  the  manner  in  which  the  alleged 
facts  are  introduced;  allegations,  which  are  merely  matters  of  in- 
ducements, do  not  require  such  strict  proof  as  those  which  are  pre- 
cisely put  in  issue  between  the  parties.  (3)  Evidence,  as  Lord 
Mansfield  used  frequently  to  observe,  is  always  to  be  taken  with 
reference  to  the  subjeci  matter  to  which  it  is  applied,  and  to  the 
person  against  whom  it  is  used. 


Inducement. 


There  are  a  great  variety  of  examples,  both  in  civil  and  criminal 
cases,  which  might  be  cited  in  illustration  of  the  rule  now  under 
discussion  The  object  cJ  ihe  preseni  section  will  be  to  make  a 
selection  of  such  exar.iijlcs  as  appear  niOst  gon^rnllj'  iise.'nl.  And, 
afterwards,  it  will  not  be  foreign  to  the  subject  to  consider  the  na- 
ture of  material  and  immaterial  averments,  and  the  doctrine  of 
variances. 

P\t&,tolvitad  In  an  action  on  a  bond,  if  the  defendant  plead  solvit  ad  diem, 
the  issue  will  be  maintained  by  proof  of  payment  before  the  ap- 
pointed day;  and  payment  to  a  third  person  by  the  appoint- 
ment of  the  plaintiff,  will  be  substantially  payment  to  the  plaintiff 
himself,  (d) 

(1)  Butler's  case,  Rnss.   &   Ry.  Cr.         (8)  By  Chambre,   J.,  in  1  New  Rep. 
C.  61.  219. 

(2)  lb.  in  note. 

(6)  See  Note  385,  p.  491.     (c)  See  Note  886,  p.  491-      (<i)  See  Note  387,  p.  492. 


Sect.  5.]      The  Substance  of  the  Issue  Proved,  201 

In  an  action  of  waste,  for  cutting  down  a  certain  niniiber  of  Waste, 
trees,  proof  that  the  defendant  cut  a  sntialler  number  is  sufFicient; 
for,  in  effect  the  issue  is  waste  or  no  waste.  (1)  And  in  on  action  Cjvenant. 
of  covenant,  when  the  breach  assigned  is,  "  that  the  defendant 
has  not  used  a  farm  in  a  husbandhke  manner,  but  on  the  con- 
trary i)as  committed  waste,"  &c.  to  which  the  defendant  pleads, 
*'  that  he  has  not  committed  waste,"  &c.,  but  used  the  farm  in  a 
good  and  husbandhke  manner,  and  issue  is  taken  upon  this,  the 
plaintiff  cannot  give  evidence  of  any  unhusbandlike  treatment  of 
the  farm,  not  amounting  to  waste;  for  the  issue  is  narrowed  to 
this  point.  (2) 

In  an  action  against  a  sheriff,  where  the  plaintiff  declared,  that  Action  against 
he  had  J.  S.  and  his  wife  in  execution,  and  that  the  defendant 
suffered  them  to  escape,  and  a  special  verdict  was  found,  that  the 
husband  alone  was  taken  in  execution  (the  execution  being  for  a 
debt  du  i  from  the  wife  before  coverture),  and  that  he  escaped,  tlie 
Court  held,  that  the  substance  of  the  issue  was  found,  and  gave 
judgment  for  the  plaintiff.  (3) 

In  an  action  on  a  simple  contract,  whether  assumpsit  or  debt,  the  Assumpsit, 
plaintiff  may  prove  and  recover  a  less  sum  than  he  has  demanded 
in  the  writ;  and  for  this  reason,  it  hss  been  held,  that  a  declara- 
tion in  such  action  is  not  bad  for  specifying  a  less  sum,  though 
the  breach  assigned  is  the  non-payment  of  the  whole  sum  de- 
manded. (4)  (e) 

In  actions  for  slander,  the  courts  used  at  one  time  to  hold,  that  Action  for 
,         I   •     ■  rr-  1  I  -1  1    •  I     slander. 

the  planitin  was  bound  to  prove  tlje  words  spoken  precisely  as  Jaid; 

but  it  is  now  settled  that  it  will  be  sufficient,  if  the  plaintiff  prove 
some  material  part  of  the  words  alleged  on  the  record.  If  the  dec- 
laration contain  several  actionable  words,  the  plaintiff  will  be  enti- 
tled to  a  verdict  on  proving  some  of  them.  (5)  (/) 

In  an   action  of  replevin,    where  the   defendant   avowed    taking  Replevin, 
the  cattle  as  damage-feasant,  the  plaintiff  pleaded  in   bar,  that  one 

(1)  Co.   Liu.    2S2,  a.     2   l{o!l.    Abr.         (4)  M'auillin  v.  Cov,  1  H.  Bl.  249. 
706,  lit.  Verdict,  C.  40.     Holinrt,  53.  (5)  Conipiignon  v.  Martin,  2  Bl.  Rep. 

(2)  HariU  V.  M;i!U!e,  .S  T.   R.  .307.         790.      See    vol.    ii.      Action   for   fclan- 

(3)  Roberts    and    wife  v.    Herbert,  1     der. 
Sid.  5,  S.  C.  cited  Bull.  N-  P.  299. 


(c)  Seo  Note  3S8,  p.  493.     (/)  See  Nolo  39S,  p.  494. 

Vol.  I.  26 


202  The  Substance  of  Issue  Proved.         [Cli.   7. 

W.  was  seised  of  a  house  and  land,  &c.,  wliereto  he  had  common, 
&c.,  and  demised  the  same  to  him  to  hold  from  a  certain  day  next 
before  for  a  year;  the  avowant  traversed  the  lease  modo  el  forma^ 
upon  which  issue  was  taken;  (he  jury  found  a  special  verdict,  that 
W.  made  a  lease  to  the  plaintifFon  the  day  stated,  for  a  year;  and 
the  plaintiff  had  judgment,  for  allhougli  ihis  is  not  the  same  lease 
as  pleaded  (since  this  hegins  on  the  day  and  the  oilier  not  so  soon), 
yet  the  Court  said,  the  substance  of  the  issue  is,  whether  or  not 
the  plaintiff  had  such  a  lease,  as  by  force  thel'eof  he  might  have 
common  at  the  time,  and  this  appeared  to  be  the  case  here.  (l)(g") 

If  the  issue  joined  between  the  parties  is,  whether  A.  &  B.  were 

church-wardens,  proof  that  one  was,  and   not  the  other,  would  not 

Action  for        ^^  sufficient.  (2)    So,  where  the  declaration  averred,  that  the  plain- 
assault.  _  .  . 

tiff  was  constable  of  a  particular  parish,  and   that  he  was  assauhed 

Constable's      in  the  execution  of  his  office  as  constable,  and  it  appeared   on  the 

evidence,  that  he  had   been  sworn   in  to  serve  for  a  whole  liberty, 

of  which  the  parish  formed   a  part,  this   was  held  to  be  a  material 

variance.  (3) 

Plea  of  tender.  If  the  plaintiff  reply,  to  a  plea  of  tender,  that,  before  the  cause 
of  action  and  after  the  tender,  he  demanded  the  sum  tendered,  he 
will  be  obliged  to  prove,  under  the  issue  joined  upon  this  leplica- 
tion,  a  demand  of  that  specific  sum.  The  proof  of  a  demand  of  a 
larger  sum  would  not  support  the  issue.  (4) 

criminal  '^^'^  same  general  rule  of  evidence  applies,  if  possible,  siill  more 

cases.  strongly  to  the  case  of  criminal  prosecutions  than  to  civil  suits.      It 

is  an  universal  principle,  which  runs  through  the  whole  of  the  crim- 
inal law,  that  it  will  be  sufficient  to  i)iove  so  much  of  the  indict- 
ment, as  charges  the  defendant  with  a  substantive  ciime.  If  the 
indictment  chaiges,  that  the  defendant  did,  and  caused  to  he  done, 
a  particular  act,  it  is  enough  to  prove  either  the  one  or  the  oth- 
Pros.  for  libel,  er.     If  the   defendant  is  charged    with   coaiposing,  printing,  and 

(l)Popev.   Skinner,  Hob.    72,  S.  C.  2SI. 

cited  Bull.  N.  P.    300.     Forty  v.  Imber,  (4)  P»ivers   v.    Griffiths,    5   Bnrn.  & 

6  East,  434.  Aid.  630.     Spybey  v.    Hide,  1    Campb. 

(2)  Bull.  N.  P.  299.  181. 

(3)  Goodes  v.    Whcatley,  1  Campb. 


(S)  Fee  Note  3S0,  p.  494. 


Sect.  5.]         The  Substance  of  Issue  Proved.  203 

publishing  a  libel,  he  may  be   convicted   only   of  the  printing  and 
publishing.  (1) 

On  an  indictment  for  obtaining  money   under  false   pretences,  it  False  pre- 
is  not  necessary  to  prove  the  whole  of  the  pretence  chai-ged  :  proof 
of  part  of  the  pretence,  and  that   the  money  was  obtained  by  such 
p.'irt,  is  sufficient.  (2)  (/t) 

On  a  charge  of  petit  treason,  if  the  kiUing  with  malice  is  proved,  Petit  treason, 
but  no  circumstances  of  aggravation   are   proved   to  make   the  of- 
fence treasonable,   the  prisoner  may  be  found  guilty  of  the  mur- 
der. (3)      On  an   indictment  for    burglary   and  stealing  goods,  if  it  Burglary, 
appear  that  no   burglary   was   committed,    as   where   the  breaking 
and  entering  were  not   in  the  night — or   on   a  charge   of  robbery,  j^obbery. 
where  the  properly  was  not  taken  from  the  person  by  violence,  or 
by  putting  him  in   fear — the  prisoner  may    be  found   guilty  only  of 
the  simple  larceny.  (4) 

On  the  trial  of  an  indictment  for  murder,  the  jury   may  find  the  Murder, 
prisoner   guilty   of  manslaughter  only;  for  the   principal  matter  is 
ihe  killing,  and  the   malice    is    only    a  circumstance  in    aggrava- 
tion. (5)     And  if  the  manner  or  means  of  the  death,  proved  at  the  Manner  of 
trial,  agree  in  substance    vviili  the  means  charged   in    the  indict-    ^^ 
tnent,  it  will   be  sufficient  ;  as,  where  the  indictment  is  for  killing 
with  a  dagger,  and  the  evidence  prove  a  killing  with  a  staff;  (6)  or 
if  the  indictment  be  for  killing  with  one  sort  of  poison,  and  the  ev- 
idence proves  the   killing  with   another  ;  such  evidence   maintains 
the  indictment,  because  the  proof  of  the  instrument  is  not  absolute- 
ly necessary  to  the  proof  of  the   fact  itself;  (6)  but  if  the  charge  is 
for  poisoning,  and  the  death  is   proved    to  have   been   caused    by 
striking  or  starving,  &c.,   this   evidence   would  not  support  the  in- 
dictment, as  the  species  of  death   in  the  one  case  is  totally  differ- 
ent from  that  in  the  other.  (7) 

(1)  R.V.Hunt,    2    Campb.   583.     R.  (5)   Mackalley's  case,  9    Rep.  67,  b. 
V.    Williams,    ib     646.     See    also  cases     Co.  Litt.  282,  a.     Glib.  Ev.    233. 

in  2  East,  P.  C.  515.  516.  (6)  9    Rep.    67,    a.     Gilb.    Ev.  231. 

(2)  Hill's  case,  Russ   &    Ry.  Cr.  C.     1  East,    P.    C.    311.     Rex.   v.    Clark,  1 
190.  Bred.  &  Bing.  473. 

(3)  Case     of    Swan    and     Jefferys,         (7)  9  Rep.    67,   a.     Gilb.    Ev.    231. 
Fost.  Cr.  L.  104.  1  East,  P.  C.  341.     2  Inst.  319. 

(4)  2  East,  P.  C.  513,  515,  516. 


(A)  See  Note  39 1,  p.  495. 


204  The  Substance  of  Issue  Proved  [C!i.  7. 

Principal.  If  the   iivJictnient  ciiarges  that  A.  gave  ihe   mortal   blow,   and 

thai  B,  and  C  were  present,  aiding  and  abetting,  &€.,  but  on  the 
evidence  it  appears  that  B.  struck,  and  that  A.  &  C.  were  present, 
aiding,  &c.,  this  is  not  a  material  variance,  for  the  stroke  is  ad- 
judged in  law  to  be  the  stroke  of  every  one  of  them,  and  is  as 
strongly  the  act  of  the  others,  as  if  they  all  three  had  held  ihs 
weapon,  and  had  all  together  struck  the  deceased.  (1)  'J'he  iden- 
tity of  the  person,  supposed  to  have  given  the  stroke,  says  Mr. 
Justice  Foster,  is  but  a  circumstance,  and  in  this  case  a  very  im- 
material one.  'ihe  stroke  of  one  is,  in  consideration  of  law,  and 
in  sound  reason  too,  the  stroke  of  all.  They  are  all  principals  in 
law,  and  principals  in  deed,  (t) 

Accessory.  If  two  persons  are   indicted    as   principals,  and  one  is  proved  to 

be  only  accessory,  he  rrnisi  be  discharged  on  this  indictment,  (2) 
for  in  consideration  of  law  their  offences  are  quite  different,  {j) 
And  one  indicted  as  accessory  before  the  fact  cannot  be  convicted 
upon  evidence  proving  him  to  have  been  (principal  in  the  second 
degree)  present,  aiding  and  abetting,  at  the  fact.  (3) 

Murder  of  of-  In  Mackalley's  case,  (4)  where  the  prisoner  was  tried  for  the  mur- 
tion  of  his  of-  ^'^''  ^^  ^  Serjeant  at  mace  in  London,  the  indictment  charged,  that 
fice.  the  sheriff  made  a  precept  to  the  serjeant  for  the  arrest,  and  it  ap- 

peared upon  the  evidence,  that  there  was  no  such  precept,  but  that 
the  Serjeant  made  the  arrest  ex  officio  at  the  plaintiff's  request,  on 
the  entry  of  the  plaint  according  to  the  custom  of  the  city  ;  and  all 
the  judges  held,  that  the  variance  between  the  indictment  and  the 
evidence  was  not  material,  because  the  warrant  to  arrest  was  only 
a  circumstance,  and  the  substance  of  the  matter  had  been  found, 
wl)ich  was,  that  the  prisoner  killed  an  officer  in  the  lawful  execu- 
tion of  legal  process,  (k)  The  Judges  were  also  of  opinion,  that  the 
indictment  might  have  been  general,  (that  the  prisoner  feloniously 
and  of  his  malice  prepense  killed,  &c.)  and  that  the  special  matter 
might  have  been  given  in  evidence;  and  since  the  indictment  in 
the  principal  case  contained  such  an  averment,  they  held  that  the 

(1)  Mncknlley'a  case,    9  Rep.  67,  p.         (2)  Gilb.    Ev.    232.      See   Fost.    Cr. 

1  Plowd.    93.     Willis'    case,     1    Salk.     L.  361. 

334.  Fost.  Disc.  351.  Tovvle's  case,  (3)  Gordon's  case,  1  East,  P.  C. 
on  St.  43    G.    3.    c    58.     3    Price,    145.     352. 

2  Marsli.  466,  S.  C.  (4)  9  Rep.  61,  b.  67,  a.  68,  a. 


(i)  See  Note  392,  p.  496.     (;  )  Seo  Note  393,  p.  496.     (/c)  See  Note  394,  p.  496. 


Sect.  6.  J  The  Substance  of  Issue  Proved.  205 

chnrge  of  murder  had  been  proved,   nolwiilistanding  that  the  spc-  ^*'""'"'^*'- 

cial  matter,  given  in  evidence,  might  vary  in  substance  from  the 
special  matter  contained  in  tlie  indictment.  (/) 

A  p^reat  variety  of  cases  occurs  in  the  books  with'  respect  to  the  Averments 

°  .  .  •  I        1-  T  -1  nialerial. 

necessity  of  proving  averments  in  pleading.  immaterial  aver- 
ments need  not  be  proved.  It  is  a  general  rule,  that  a  variance  Variance. 
between  the  allegation  and  the  proof  will  not  defeat  a  p;irty,  un- 
less it  be  in  respect  of  matter  which,  if  pleaded,  would  be  ma- 
terial. (1)  If  the  variance  be  in  respect  of  a  mat'.er  not  essential 
to  maintain  the  action  or  the  plea,  it  is  of  no  importance.  In  an 
action  upon  a  bill  of  exchange,  when  the  declaration  stated  the 
bill  to  have  been  excepted  and  indorsed  before  it  became  due,  and 
the  proof  was,  that  it  was  indorsed  after  it  became  due,  the  Court 
iield  it  was  no  variance;  because  it  was  immaterial,  whether  the 
bill  was  indorsed  before  or  after  it  became  due;  and  therefore  it 
was  unnecessary  to  prove  the  indorsement  precisely  at  the  time 
when  it  was  alleged.  (2)  (m) 

The  general  rule  of  pleading  in  cases  of  tort  is,  that  it  is  suffi-  In  tort, 
cient,  if  j)art  only  of  the  allegation  slated  in  the  declaration  be 
proved,  provided  that  what  is  proved  affords  a  ground  for  maintain- 
ing the  action,  supposing  it  to  have  been  correctly  stated  as  prov- 
ed. There  is  one  exception,  however,  to  this  rule,  which  is,  when 
the  allegation  contains  matter  of  description.  There,  if  the  proof 
given  be  different  from  the  statement,  the  variance  is  fatal.  (3) 

It  is  quite  enough  in  cases  of  tort,  if  the  same  ground   of  action  In  contractor 
I        -i-j-.ji         •  11         1  1  prescription. 

IS  proved  as  is  Jaid  m  the  declaration,  although   not   to  the  extent 

there  stated.  In  the  cases  of  contract  and  prescription,  it  is 
different,  for  in  the  former,  if  all  that  is  stated  in  the  decla- 
ration be  not  proved,  it  is  a  proof  of  a  different  contract,  and  a 
different  ground  of  action;  the  party  therefore  cannot  be  entitled 
to  the  judgment  of  the  court.     In  the  latter   case,    when  a   pre- 

(l)3Barn.  &    Ciess.    122,    by    Lord         (3)2  Barn.    &    Aid.    363,    by    Lord 
Tenterden,  Cb.  J.  Tenterden.     4  Barn.  &  Cress.  385. 

(2)  Young  V.  Wright,  1  Campb.  139. 

(/)  See  Note  395,  p.  497.     (m)  See  Note  396,  p.  501. 


206 


Variance. 


The  Substance  of  Issue  Proved.  [Ch.  7. 

scii|iiion  is  alleged  in  bar,  it  is  an  entire  thing,  and  must-  be   prov- 
ed to  the  extent  laid.  (1) 


Inducement.  An  averment,  which  is  merely  matter  of  inducement  to   the   ac- 

tion, need  not  be  proved  with  the  utmost  strictness  and  precis- 
ion. Thus  where  an  action  was  brought  to  recover  double  the  val- 
ue of  goods,  which  had  been  removed  for  the  purpose  of  prevent- 
ing a  distress,  and  the  declaration  stated  a  certain  sum  to  be  in  ar- 
rcar  for  rent,  it  was  decided  that  the  plaintiff  was  entitled  to  recov- 
er, although  the  notice  of  distress  was  for  a  less  sum.  (2)  Here, 
whether  the  particular  sum  stated  in  the  declaration  was  in  arrear, 
must  be  perfectly  immaterial;  the  damages  were  not  to  be  meas- 
ured by  the  quantity  of  rent,  but  by  the  value  of  tlie  goods,  which 
had  been  removed,  (n) 

Where  aver-         If  an  averment  may  be  struck  out  without  destroying  liie    plain- 

ment  may  be    (iff'g  ,-ig|)t  of  action,  it  will  not  be  necessary  to   prove   it;  but   it  is 
struck  out.  ,  .         ..    ,  ,  ,  .  , 

Otherwise,  ii  tlie  averment  cannot   be  struck  out   without  getting 

rid  of  a  part  essential  to  a  cause  of  action:  for  then,  though  the 
averment  be  more  particular  than  it  need  have  been,  the  whole 
must  be  proved,  or  the  plaintiff  cannot  recover.  (3)  Thus,  in  the 
case  of  Bristow  v.  Wright,  (4)  which  was  an  action  against  the 
sheriff  for  taking  the  goods  of  a  lodger  without  leaving  a  year's  rent, 
the  declaration  stated  some  particulars  of  the  demise  relative  to 
the  time  of  [)ayment  of  rent,  which  were  negatived  by  the  evi- 
dence, and  the  Court  held  that  the  variance  was  fatal.  There,  it 
was  necessary  for  the  plaintiff,  in  order  to  sliow  that  he  was  land- 
lord, to  set  forth  a  contract  between  himself  and  the  tenant,  and 
no  part  of  the  contract  alleged  could  be  struck  out,  because  it  was 
in  its  nature  entire:  though  it  was  admitted,  that  the  'part  of  the 
contract,  relating  to  the  lime  of  jjayment,  need  not  have  been  aver- 
red, (o) 

The  case   of    Williamson  v.   Allison  (5)    illustrates   the    other 
part  of  the  rule,  namely,  that  where  an   averment  may   be   struck 

(1)  2  Barn.  &  Aid.  366.  (4)  2  Doug.  664.     See  5  T.  R.    496. 

(2)  Gwinnet  v.  Phillips,  3  T.  R.   643.     2  East,  4.50,  452.  S  East,  9. 

See  another  instance  ill  Stoddart  V.    Pal-  (5)   2  East,  446.     See  also  Peppin  v. 

mer,  3  Barn  &  Cress.   2,  stated  infra.  Solomon,  5  T.   R.    496.     Broomfield    v. 

(3)  By  Lawrence,  J.  iu  Williamson  v.  Jones,  4  Barn.  &  Cress.  380. 
Allison,  11  East,  4.52. 


(n)  See  Note  397,  p.  501.     (o)  See  Note  398,  p.    503. 


Sect,  o.]         The  Substance  of  Issue  Proved.  207 

out,  it  need  not   be    proved.      That   was  an   action  on  the  case  in  Variance  in 

tort,   for  the  breach  of  a  warranty  in   selling  goods  unfit  for  sale, ' 

and  the  declaration  averred,  that  the  defendant  knew  the  goods 
to  be  in  an  unfit  state,  of  which  fact  there  was  no  evidence  at  the 
trial;  but  the  Court  held,  that  such  proof  was  unnecessary,  for 
if  the  whole- averment  respecting  the  defendant's  knowledge  of  the 
unfitness  for  sale  were  struck  out,  the  declaration  would  still  be 
suflicient  to  entitle  the  plaintiff  to  recover  upon  the  breach  of  the 
warranty  proved,  {p) 

The  same  rule  is  applicable  to  averments  in  an  indictment.  If  Indictment, 
an  averment  may  be  entirely  omitted,  v/ithout  affecting  the  charge 
against  the  prisoner,  and  without  detriment  to  the  indictment,  it 
will  be  considered  as  surplusage,  and  may  be  disregarded  in  evi- 
dence. Thus  where  tlie  prisoner  was  charged  with  robbery  near  Robbery, 
the  highway,  and  the  robbery  was  proved,  but  not  near  the  high- 
way, (1) — where  the  robbery  was  averred  to  have  been  committed 
in  the  house  of  a  certain  person  named,  and  the  name  of  the  own- 
er was  not  proved,  (2) — and  where  the  offence  of  arson  was  stated  Arson, 
in  the  indictment  to  have  been  committed  in  the  night-time,  and 
was  proved  not  to  have  been  in  the  night-time,  (3) — in  thesecases, 
all  the  Judges  were  of  opinion,  that  the  convictions  were  proper, 
and  the  prisoners  were  ousted  of  the  benefit  of  clergy.  But  where 
the  averment  in  the  indictment  is  sensible  and  material,  it  ought  to 
be  regularly  j)roved;  as,  where  tlie  prisoner  was  indicted  for  a  bur-  Burglary, 
ghuy  in  ilie  house  of  J.  D.  with  intent  to  steal  the  goods  of  J.  W., 
and  it  appeared  in  evidence  that  no  such  person  had  any  goods  in 
the  house,  but  that  the  name  of  J.  W.  was  put  by  nsistake  for  J. 
D.,  (4)  tile  Judges  held,  that  it  was  material  to  stale  truly  the  pro- 
perly of  the  goods,  and  on  account  of  this  variance  the  prisoner  was 
acquitted,  (q) 

Wliere   ihe   action    is    brought    upon   a   contract,   the   contract  Varinnce  in 
ought  to    be  slated  correctly,  and    proved   as  laid;  and  if  any  part  *^°""^'^'' 
of  the  contract   proved,   vary    materially  from  that   stated    in   the 

(1)  Wardle's   case.   2    East,   P.    C.         (3)  Minton's    case,    2     East,    P.    C. 
785.     Russ.  &  Ry.  Cr.  C   9,S  C.  1021. 

(2)  Pye'.s   case,     .rohiislor.o's   case,         (4)  Jenk's   case,  2  East,   P.  C.  514. 
2  East,  P.    C.  7S.').     Russ.    &    Ry.    Ci. 

C.  9,  S.  C. 

ip)  See  Note  399,  p.  505.     (q)  See  Note  400,  p.  503. 


tort. 


208  Tlie  Substance  of  Issue  Proved.  [Ch.  7. 

Variance  in      pleadings,  the   whole  foundation  of  the  action  fails,  since  the  con- 

''°""""'^^" tract  is  entire  and   indivisible.  (1)      If  the  contract,  therefore,  for 

the  breach  of  which  the  action  is  brought,  wns  in  the  alternative, 
at  the  option  of  the  defendant,  (as  to  deliver  this  or  that  qoantiiy  of 
goods  at  one  time,  and  the  remainder  at  another,)  it  ought  to  be  so 
stated,  for  if  the  declaration  states  an  absolute  contract,  and  the 
proof  is  of  a  contract  in  the  alternative,  the  plaintifl'  cannot  recov- 
er, although  the  defendant  may  have  determined  his  option.  (2) 
In  an  action  against  a  carrier,  on  a  general  undertaking  to  carry 
safely,  proof  of  a  contract,  to  carry  safely,  (Qre  and  robbery  except- 
ed,) is  a  variance.  (S)  (r) 

Contract  Stat-  This  rule  is  not  confined  to  actions  of  assumpsit.  In  an  action 
ed  in  action  of  ^j-  ^^^.^  ^j^^^  where  the  contract  is  necessary  to  be  slated  in  order  to 
maintain  the  ground  of  action  as  laid  in  the  record,  the  contract 
ought  to  be  pi'oved  as  stated.  Thus  in  an  action  against  two  de- 
fendants for  deceit,  charged  in  the  declaration  to  have  been  com- 
mitted by  them  in  a  joint  sale  of  their  joint  properly,  the  Court  of 
King's  Bench  held,  as  there  was  no  evidence  against  one  of  the 
defendants,  that  the  action  could  not  be  maintained  against  the 
other.  (4)  The  joint  contract  here  described,  said  Lord  Ellenbo- 
rough,  in  delivering  the  judgment  of  the  Court,  is  the  foundation 
of  the  joint  warranty  laid  in  the  declaration,  and  essential  to  its 
legal  existence  and  validity;  and  it  is  a  rule  of  I nv,  that  the  proof 
of  the  contract  must  correspond  with  the  description  of  it  in  all  ma- 
terial respects,  (s) 

(1)  1  T.  R.  240;  3  T.  R.  645.  v.  Rule,  3  Bing.  315 — The  following 
The  following  are  llie  princip.il  mod-  are  c.iscs  on  promissory  notes  and 
ern  rases  on  this  subject;  Bristow  v.  bills  of  exchange.  VVhilwell  v.  Ben- 
Wright,  2  Dong,  (;fi4,'(supra,  p.  206,  net,  3  Bos.  &  Pull.  559.  Gordon  v. 
S.  C.)  Carlisle  v.  Trears,  Cowp.  67t.  Austin.  4  T.  R  611.  Johnson  v. 
Churchill  V.  Wilkins,  1  T.  R  447.  Mars,  2  Camp.  S()3.  Roche  v.  Carnp- 
Durston  V.  Tuthan,  cited  3  T.  R.  67.  hell,  3  Camph.  247.  Hodge  v.  Fillis, 
Littler  v.  Holland,  3  T.  R.  5i)0.  3  Cairiph.  463  Hutchinson  v.  Piper, 
Hockin  V.  CooUe,  4  T.  R.  414.  Leery  4  Taunton,  810.  E.\on  v.  Russell, 
V.  Goodson,  4  T.  R.  6S7.  White  v.  4  Maule  &  Sel.  505.  Mountstephen 
Wilson,  2  Bos.  &  Pull  116  Per  ny  v.  Brooke,  1  Barn.  &  Aid.  224. 
V.  Porter,  2  F.ast,  2.  Brown  v.  Sayce,  (2^  Penny  v.  Porter,  2  East,  2;  and 
4  Taunlon,  320.  Pool  v.  Court,  4  see  2  Eist,'  134;  Cooke  v.  ftlunstone, 
Taunton,  700.  Cohen  v.  Ilannam,  1  Bos.  &  Pull.  N.  R.  35 1. 
6  Tauulon,  101.  Arnfield  v.  Bate,  3  (3)  Latham  v.  Rulley,  2  Barn.  & 
Maule    &    Sel.    173      gquire    v.    Hunt,  Cre^.s.  20. 

3    Price,    68.     Wildman    v.    Glossop,  I  (4)   Wcall     v.    King,    12    East,    452 

Barn.  &.    Aid.  9.     Tucker    v.    Cracklin,  Green    v.  Greenhank,    2    Marsh.     4S5. 

2    Slarkie,    N.   P.    C    3S5.     Parker    v.  Lope.^  v.    De   Ta=ter,  I    Brod.    &   Bing. 

Palmer,  4   Barn.  &    Aid.    3S7.     Strong  528. 

(r)  See  Note  401 ,  p.  509.     (s)  See  Note  402,  p.  514. 


Sect.  5.]         The  Substance  of  Issue  Proved.  209 

It  will  not  be  necessary  for  the  plaintiff  to  state  all  the  several  Vanance  in 

,  •'  .       '  ,     _  contract. 

parts  of  a  contract,  which  consists  of  distinct  and  collateral  pro- 


visions; but  it  is  sufficient  to  state  so  much  of  the  contract  as  con-  conuact^need 
tains  the  entire  consideration  for  the  act,  and  the  entire  act  to  be  be  stated. 
done  in  virtue  of  such  consideration,  including  the  time,  manner 
and  other  circumstances  of  its  performance,  (1)  Thus,  if  there  is 
a  provision  in  the  contract  to  discharge  the  party  from  all  liability, 
in  case  a  particular  condition  is  not  complied  with,  it  ought  to  be 
set  out  and  strictly  proved:  but  it  is  otlierwise,  where  the  provis- 
ion respects  only  the  liquidation  of  damages  on  a  breach  of  the 
contract;  such  a  provision  need  not  be  stated  in  the  pleadings.  (I) 
In  an  action  on  the  case  upon  the  warranty  of  a  horse,  if  the  plain- 
tiff states  truly  the  whole  of  the  consideration  for  the  promise  of 
the  defendant,  (which,  in  the  case  referred  to,  was  the  re-delivery 
of  the  horse  to  the  defendant,)  and  then  states  truly  the  substan- 
tive parts  of  the  warranty,  of  the  breach  of  which  he  complains, 
this  will  be  sufficient,  without  averring  other  parts  of  the  warranty 
entirely  collateral  and  irrelevant  to  those  stated.  (2)  In  the  case 
of  Gladstone  v.  Neale,  (3)  the  contract  stated  for  the  purchase 
of  a  certain  quantity  of  goods,  ("  to  wit,  eight  tons,"  and  the  con- 
tract proved  was  for  the  purchase  of  "  about  S  tons,"  the  exact 
amount  not  being  known  at  the  time  of  making  the  contract,  but 
being  ascertained  before  the  action  was  brought;  and  it  was  de- 
termined at  the  trial,  and  afterwards  by  the  court  of  King's  Bench, 
that  the  variance  was  not  material,  (t) 


In  all  cases  of  joint  contracts,  in  writing  or  by  parol,  or  ex  quasi 


Joint  con- 
tracts. 


contractu,  and  in  all  cases  of  joint  obligation,  it  seems  now  to  be 
settled,  that  if  one  only  be  sued,  he  may  plead  the  matter  in  abate- 
ment, but  cannot  take  advantage  of  it  afterwards  upon  any  other 
plea,  or  in  arrest  of  judgment,  or  give  it  in  evidence  under  the  gen- 
eral issue.  Thus,  in  an  action  against  the  defendant  as  drawer  of  Rule  as  to 
a  bill  of  exchange,  who  pleaded  non  assumpsit,  and  it  appeared  in  P^'''y  ^"«^- 
evidence  at  the  trial,  that  the  bill  was  drawn  by  the  defendant  and 

(1)  Clarke  v.  Gray,  6  East,  564,  v.  Hunt,  3  Price,  68.  Hanford  v  Pa!- 
569.  Thornton  V.  Jones,  2  Marsh.  Kep.  mer,  2  Brod.  &  riing.  359.  See  Blyth 
287.     Parker  V.  Palmer,  4  Barn.  Si  Aid.     v.  Banipton,  3  Bing.  472. 

387.  (3)  13   East,  410.     Crispin   v.    VVil- 

(2)  Miles   V.     Sheward,    8    East,  7.     liamson,  8  Taunt.  107. 
Cotterill  V.  CufF,  4   Taunt.  285.     Squier 

(0  See  Note  403,  p.  515. 

Vol.  I.  27 


210 


The  Substance  of  Issue  Proved. 


[Ch.  7. 


Variance  in 
contract. 


Rnle  as  to 
party  tuing. 


another  jointly;  on  a  motion  to  set  aside  the  verdict  (which  had 
been  found  for  the  plaintilT,)  upon  the  ground  of  this  supposed  va- 
riance, the  court  of  exchequer  was  clearly  of  opinion,  that  there 
was  no  variance  between  the  bill  of  exchange  proved,  and  that 
which  was  declared  upon.  (1)  The  same  rule  holds,  when  the 
action  is  brought  against  one  of  several  partners;  the  defendant 
must  plead  in  abatement,  and  cannot  give  the  partnership  in  evi- 
dence under  the  general  issue.  (2)  Formerly,  a  different  rule  was 
adopted,  on  the  ground  of  a  supposed  variance.  (3)  But  with  re- 
spect to  the  party  suing,  the  rule  is  still  the  same;  namely,  that  if 
an  action  of  assumpsit  is  brought  by  one  only  of  several  parties  to 
a  contract,  who  ougiu  to  join,  the  defendant  may  take  advantage 
of  it  upon  the  general  issue  of  non  assumpsit.  (4)  (m) 

Rule  as  to  A  distinction,  however,  has  been  made,  in  this  respect,  between 

joinderm  torts,  actions  of  assumpsit  and  actions  of  tort;  and,  in  the  latter  case,  if 
one  only  of  several  persons,  who  ought  to  join,  bring  the  action, 
the  defendant  cannot  avail  himself  of  the  variance  under  the  gen- 
eral issue,  but  must  plead  it  in  abatement.  (5)  'inhere  is  a  distinc- 
tion also  between  these  forms  of  action,  with  respect  to  the  party 
sued.  For  if  several  persons  jointly  commit  a  tort,  the  plaintiff  has 
his  election  to  sue  all  or  any  nunjber  of  the  parties,  a  tort  being  in 
its  nature  the  separate  act  of  each  individual;  and,  therefore,  in 
actions  ex  delicto  against  one  only,  (such  as  trover,  trespass,  case 
for  malfeasance,  and  the  like,)  for  a  tort  committed  by  several,  the 
defendant  cannot  plead  such  matter  in  abatement  or  in  bar,  nor 
give  it  in  evidence  on  the  general  issue.  (6)  (y) 


^'ioUon.  ^^^^  '""'^  above    laid    down   with   respect   to   contracts   applies 

equally  to   the  case   of  a   prescription  :  a  prescriptive  right  is  one 


(1)  F.vnns  v.  Lewis,  MS.  case  re- 
ported in  Rlr.  Serjt.  Williams'  edit,  of 
Saund.  1  V.  291,d.  Germain  v.  Frcd- 
ericl:,  MS.  case,  ib.  Rocs  v.  Abbolt, 
Cowp.  8S2.  Powell  v.  Laylon,  2 
New    Rep.  3C5. 

(2)  Rice  V.  Shute,  5  Burr.  2611. 
Abbott  V.  Smith,  2  Black.  947.  1 
Eos.  &  Pul.  72. 

(3)  Eoson  V.  Sand  ford,  2  SalU.  -140. 

(4)  Lcglise   V.     Champante,    2   Str. 


820.  Graham  v.  Robertson,  2  T.  R. 
282.  1  Saund.  291,  /.  in  note.  Teed 
V.  Elworlby,  14  East,  210. 

(5)  Doc!a\ray  v  Dickenson,  Siiiii. 
G40  Leslise  v.  Champante.  2  Str. 
S20.  Addison  v.  Ovnrend,  6  T.  R. 
760.  Sidgworlh  v.  Overend,  7  T.  R. 
279.  Blo.xiiani  v.  Hubbard,  5  East, 
420. 

(6)  Boson  V.  Sandford,  1  Show. 
29.     Mitchell  v.  Tarbutt,  5  T.  R.  G51. 


(«)  See  Note  404,  p.  515.     (i)  See  Note  406,  p.  517. 


Sect.  5.]  Tlie  Substance  of  Issue  Proved.  21 1 

entire  thing,  and,  when  put  in  issue,    must   be   proved    as  stated.  Variance  jq 
It  ought  to  be  proved,  therefore,  to   the  full  extent,  to  which  it  is 


claimed.  Thus,  in  replevin,  if  the  defendant  avow  taking  the 
cattle  as  damage  feasant,  and  the  plaintift'  plead  in  bar  a  right  of 
common,  and  aver  that  the  cattle  were  levant  and  couchant,  on 
which  averment  issue  is  joined,  proof  only  for  part  of  the  cattle 
will  not  be  sufficient,  for  (he  issue  is  upon  the  whole.  (1)  But  Proof  of  more 
though  the  party  must  prove  a  prescriptive  right  commensurate  ^'"P°  "^'S  '• 
with  the  right  claimed,  he  will  not  be  precluded  from  recovering, 
because  he  proves  a  more  ample  right  than  what  he  claims.  Evi- 
dence of  a  right  of  common  for  sheep  and  cows  will  support  a  plea 
prescribing  for  common  only  for  sheep.  (2) 

A  distinction  is  to  be  made  between   the  case   of  a  prescriptive  Plea  in  bar. 
right  of  common  alleged  in  bar,  on  which  issue  is  taken,  and  a  pos- 
sessory  right  of  common   claimed   in  an  action  of  tort  for  disturb- 
ance of  the  rio;ht.     In  the  latter  case,  it  is  sufficient   to   prove  the 

I      r         •  •     1    •  1  ■       1        11         ■  II  I  Action  for  dis- 

same  ground  oi  action  as  is  laid  m  the  declaration,  although  not  to  turbance. 

the  extent  there  stated.  If  the  allegation  is,  that  the  i)laintiff  was 
entitled  to  tlie  right  of  common  in  respect  of  a  certain  quantity  of 
land,  and  the  proof  is  in  respect  of  a  part  only  of  that  land,  it  will 
be  sufficient ;(o)  so  if  it  is  claimed  in  respect  of  a  messuage  and  a 
certain  number  of  acres  of  land,  and  proved  to  be  in  respect  only 
of  land.  (4)  The  proof,  in  these  cases,  is  not  of  a  different  alle- 
gation, but  of  the  same  allegation  in  part ;  and  that  is  suffi- 
cient. (5)(u)) 

Where   a  deed  is  declared  upon,  and  it  appears,  on  comparing  Variance  in 
and  reading  the  record  with  the  instrument  produced,    that  some  P''°°''°*"  *^'^^''- 
of  the  words,  stated  in  the  pleadings  as  descriptive  of  the  deed.  Description, 
(and  which  cannot    be    rejected    as   surplusage,    vary  from    the 

(1)  Slopcrv.  Alien,  2  Roll.  Ab.  706,  (3)  Yarley   v.    Turnock,    Cro.    Jac.    ' 
tit.  Trial,  c.    41,    S.  C.    cited    Bull.    N.      629.     P.ilmer,    269,  S.  C.  2    Barn.    &. 
P.     299.     Gray's      case,    5     Rep.     79.      Aid.  3C6. 

Down's  caso,  4  Rep.    29,  b.  Rogers    v.  (4)  Ricketts    v.    Salwey,    2   Barn.  & 

.Mien,    1    Campb.    313.     See    Brook  v.  Aid-    360.       Manifold     v.     Pennington, 

WiileU,  2  II.  Blacic.  224.  4  Barn.  &  Cress.  161. 

(2)  Bushwood    V.   Bond.   Cro     Eiiz.  (5)  2  Barn.  &  Aid.  366. 
722.     Bailiff,    ■kc.    of    Tewksbury     v. 

Bricknell,  1  Taunt.  142.     West  v.    An- 
drews, 6  Barn.  &  Aid.  77. 


Cu')  Seo  Note  406,  p.  51S. 


212  The  Substance  of  Issue  Proved.  [Ch.  7. 

Varianco  in     tJeed,  the  variance  will  be  fatal ;  (1)  and  though  some  parts  of  the 

"' deed,  which  the  declaration  puriiorts  to  set  out  at  length,  need  not 

have  been  stated  at  all,  or  might  have  been  stated  shortly,  accord- 
ing to  their  legal  effect  and  operation,  (2)  yet,  if  they  are  set  out 
at  length  and  descriptive  of  the  deed,  they  ought  to  be  proved  as 
laid,  and  in  case  of  a  variance  the  plaintiff  will  fail.  A  qualified 
covenant  ought  to  be  stated  with  all  its  qualifications  ;  if  it  is  set 
out  in  the  declaration  as  a  general  covenant,  and  on  reading  the 
deed  in  evidence  it  appears  to  be  subject  to  an  exception  or  limita- 
tion, the  variance  will  be  fatal.  (3) 

Deed  stated  in  If  the  declaration  does  not  profess  to  describe  a  deed  or  to 
set  it  out  according  to  its  tenor,  but  states  it  correctly  in  substance 
and  in  its  legal  effect,  a  variance  will  be  immaterial.  In  an  action 
against  a  tenant  for  breach  of  covenant,  proof  of  a  lease  from  the 
plaintiff  and  his  wife  to  the  defendant  will  support  an  averment  of 
a  lease  from  the  plaintiff  alone,  at  least,  where  the  wife  had  only  a 
chattel  interest  in  the  lands  before  marriage,  or  they  are  the  prop- 
erty of  the  husband  ;  for  the  covenants  made  to  husband  and  wife 
may,  in  legal  effect,  be  deemed  covenants  made  to  the  husband 
alone.  (4)  So  bonds  and  promissory  notes,  given  to  the  wife,  may 
be  declared  upon,  as  having  been  given  to  the  husband,  in  a  suit 
by  him.  (5) 

Variance  in  A  similar  rule  has  been  laid  down,  where  a  record  is  referred  to 

proof  of  re-  j^^  ^j^g  pleadings.  Whatever  may  have  been  the  rule  upon  this 
subject  in  ancient  times,  a  distinction  is  now  established  be- 
tween allegations  of  matter  of  substance,   and  allegations  of  matter 

(1)  The    following   are   the  principal  Bing.  395.  Arnold   v.    Revoult,  1  Bred. 

modern  cases   on    this    subject  : — Sands  &  Bing.  443. 

V.  Ledger,  2  Ld.    Raym.  792.     Pitt  v.  (2)     Dundas    v.    Lord    Weymouth, 

Green,    9     East,    188.       Bovvditch    v.  Cowp.    665-    Price    v.  Fletcher,  Cowp. 

Mawley,    1    Campb.    195.     Ilowell    v.  727.     Koulston     v.   Clarke,  2    H.    Bl. 

Richards,     11    East,    633.     Waugh     v.  6fi3. 

Russell,    5  Taunt.    707-      Tempany   v.  (3)  Howell    v.    Richards,    11    East, 

Bernard,    4    Campb.    20.      Ricrgaa  v.  633.     Tempany  v.    Bernard,  4  Campb. 

Edwards,    2    Marshall,    96.      Hoar    v.  20. 

Mill,   4   Maule    &   Selw.  470.     Weeks  (4)  Arnold   v.    Rivoult,     1    Brod.  & 

V.    Maillardet,    14  East,    568.     Gordon  Bing.    442-     Beaver,    v.    Lane,    2  Mod. 

V.    Gordon,    1    Starkie,    N.    P.  C.   294.  217,  S.  P. 

Horsefall     v.    Testar,    7    Taunt.    385.  (5)    1    B-    &    B.  442.    Antrenlem  v. 

Cartridge   v.    Griffiths,    1  Barn.  &.  Aid.  Clarke,  4  T.    R.  616.     In    this  case  the 

57.  Swallow   V.    Beaumont,  2  Barn.  &  bond   was  given   to   th»    husband   and 

Aid.  765.     Brown  v.  Knill,  2   Brod.  &,  wife   as  admiuistratrix. 


Sect.  5.]         The  Substance  of  Issue  Proved.  213 

of  description.     The  former  require  to  be  substantially  proved:  Variance  in  re 
the  latter  must  be  literally  proved.  (1)  

If  the  allegation  is  descriptive  of  the  record,  it  ought  to  be  Allegations  of 
strictly  and  literally  proved,  as  laid.  Thus,  in  the  case  of  Green  "'^''^^  ^'"'*- 
V.  Rennett,  (2),  where  a  writ  was  described  in  terms,  when  sued 
out  and  when  returnable,  and,  on  the  production  of  the  writ  it- 
self, it  appeared  to  be  returnable  on  a  different  day  from  that 
stated  in  the  declaration,  the  Court  held  that  the  variance  was 
fatal,  though  the  day  of  the  return  was  laid  under  a  videlicet.* 
In  this  case  the  return-day  was  material,  because  it  was  a  part  of 
the  description  of  the  writ  stated,  which  could  only  be  proved  by  a 
writ  returnable  on  the  same  day. 

But  where  the  pleadings   do  not  undertake  to   set  out  the  tenor  Allegations  of 
of  the  record,  and  the   substance  only    of    the  record  is  stated,  s«^«'«n". 
there  a  variance    between  the  allegation  and  the  record  will  not 
be  fatal,    provided   the   allegation   is   substantially   proved.      Thus 
in  the  case  of  the  King  v.  Lockup,  on  a   prosecution  for  perjury, 
where   the  objection     was,   that   the  indictment  stated    a     bill   in 
Chancery  to  be  directed  to  Robert  Lord  Henley,  &c.,    and  it  ap-  Direction  of 
peared  in  evidence   to  have   been  directed  to   Sir    Robert  Hen-  '"'^■ 

(1)  By  Abbott  C.  J.,  3  Barn.  &  v.  Leefe,  2  Campb.  141.  Woodford  v. 
Cress.  4.  Ashley,  2  Campb.  193.     R.  v.  Bellamy, 

(2)  1  T.  R.  656.  9  East,  161,  163.  1  Ry.  &  Mo-  171.  Sheldon  v.  Whitaker, 
Brown  V.  Jacobs,  2  Esp.  N.  P.  C.  726.  1  Ry.  &,  Mo.  266.  Be  van  v.  Jones,  4 
R.  V.  Taylor,  1  Campb.  404.  See  also  Barn.  &  Cress.  403.  Edwards  v.  Lucas, 
Com.  Dig.  tit.    Record,    (C),    (D).     R.  5  Barn.  &  Cress.  339. 

*  Where  the  circum."=tance  averred  in  the  pleadings  (as  of  a  particular  sum  Effect  of 
or  day)  is  material,  the  addition  of  a  videlicet  will  not  render  the  averment  videlicet. 
immaterial,  (Grimvvood  v.  Barrit,  6  T.  R  460,  463;)  though  the  omission  of 
a  videlicet  may  in  some  cases  make  an  averment  material,  which,  if  a  videlicet 
had  been  inserted,  would  not  have  been  so.  (Symmons  v.  Knox,  3  T.  R.  65, 
6S.  Crispin  V.  Williamson,  8  Taunt.  112.)  If  therefore  the  day,  laid  in  the 
declaration,  be  material,  it  must  be  proved,  nolvvilhstanding  that  it  is  laid 
under  a  videlicet.  It  is  by  no  means  generally  true,  that  the  omission  of  a 
videlicet  will  make  it  necessary  to  prove  the  particular  sum  or  day,  &c.  strictly 
as  laid.  Some  cases  have  been  already  mentioned,  where  a  variance  in  the 
proof  of  such  circumstances  has  been  adjudged  to  be  immaterial.  It  will  be 
sufficient  to  add  one  other  example.  On  an  indictment  for  stealing  goods  in 
a  dwelling-house,  under  the  statute  of  12  Ann.  st.  1,  c.  7,  it  is  not  necessary  to 
prove,  that  the  goods  were  of  greater  value  than  40s.,  though  that  should  he 
averred  in  the  indictment  without  a  videlicet.  And  see  R.  v-  Burdct,  1  Ld. 
Raym.  149.  R.  v.  Gilham,  6  T.  R.  266.  Gwinnett  v.  Philips,  3  T.  R.  643,  and 
2  Campb.  231. 


2U 


The  Substance  of  Issue  Proved.         [Ch.  7. 


yariancQ  In       ley,  Kniglit,   &.C.,   ilie   Court  overruled   the  objection,   and   held 
""^' it  to  be   sufficient,  that  the   complainant   had   preferred   a   bill  be- 

lore  the   person   who   held   the  great    seal,   by  whichever  title  he 

was  styled.  (1) 


Date  of  ac- 
quittal. 


Date  of  judg- 
meat. 


Variance  in 
time. 


Indictment. 


So  in  the  late  case  of  Purcell  v.  Macnamara,  (2)  in  an  action 
for  a  malicious  prosecution,  where  the  allegation  was,  that  the  de- 
fendant prosecuted  an  indictment  against  the  plaintiff,  until  after- 
wards, to  wit,  on  a  certain  day  named,  the  plaintiff  was  in  due  man- 
ner acquited,  &c.;  and,  to  prove  this  allegation,  the  record  of  ac- 
quittal was  produced,  which  showed  that  the  acquittal  was  on  an- 
other day,  the  Court  held  that  the  variance  was  not  material,  and 
that  the  averment  had  been  substantially  proved.  Here  the  day 
was  not  alleged  as  part  of  the  description  of  the  record;  but  the 
substance  of  the  allegation  was,  that  the  plaintiff  had  been  acquit- 
ted on  the  prosecution. 

So  in  an  action  against  a  sheriff  for  a  false  return,  the  declara- 
tion stated,  that  the  plaintiff  in  a  certain  term,  (naming  the  term 
and  the  year)  by  judgment  recovered,  "  as  appears  by  the  record," 
and  the  proof  was  that  he  recovered  by  a  judgment  of  another  term 
and  a  different  year:  the  Court  held  that  this  was  not  a  variance; 
that  the  averment,  "as  appears  by  the  record,"  was  mere  surplus- 
age, and  might  be  rejected,  inasmuch  as  the  judgment  was  not  the 
foundation  of  the  action,  but  only  inducement  to  it.  (3)  [x) 

It  is  a  rule  in  pleading,  that  every  material  fact  which  is  issu- 
able and  triable,  must  be  averred  to  have  happened  at  a  certain 
time  and  place.  (3)  However,  it  will  not  generally  be  necessary 
to  prove  the  time  precisely  as  laid,  unless  that  [)articular  time  is 
material.  This  is  the  constant  course  of  proceeding  in  criminal 
prosecutions  from  the  highest  offence  to  the  lowest.  In  high 
treason,   evidence  may  be  given  of  an  overt  act  cither    before   or 

(1)  R.  V.  Lockup,  cit.  1  T.  R.  240.  9  East,  298.  Philips  v.  Shaw,  4  Barn. 
9  East,   163.     R.    v.    Pippet,    1    T.    R.     &  Aid.  435. 

235.     R.   V.    Payne,    cit.    9    East,    158  (3)  Sloddart  v.    Palmer,    3  Barn.    & 

R.  V.  Leefe,  2    Campb.    139.     Byne    v.  Cress.    2.     In  this    case,    an  opinion    of 

Moore,  5  Taunt.  187.    Cousins  v.  Brown,  Lord    Ellenborough  in  Purcell  v.  Macna- 

l  Ry.  &  Mo.  291.  mara  was  overruled. 

(2)  9  East,    157.     Philips    v.  Bacon,  (4)  5  T.  R.  620. 


(x)  See  Note  407,  p.  518. 


Sect.  5.]  The  Substance  of  Issue  Proved.  216 

after  the   day   specified   in  the   indictment;  the   particular   day  is  Variance  in 

not  material  in   point  of  proof,   and   is   merely    maiter   of  form.  ^  '"^^" 

Objections  of  this  kind,  on  behalf  of  the  prisoner,  have  been  re- 
peatedly overruled.  (I)  (ij) 

The  same  general   rule  applies,  with  as  much     reason,  to  civil  Action, 
suits.     Thus,  in  an  action  on  a   promissory  note,  where   the   de- 
claration  states   that   the    defendant  on  such  a   day   made,   &c., 
proof  that  he  made  his  promissory  note  on  a   different  day  would 
be  sufficient,  (z)      So   in  an   action  for  assault,    battery,  taking  of 
gOMds,    &c.,  where  the   defendant   pleads    the   general  issue,   the 
plaintiff  will  not  be  confined  to  the  day  stated   in  the   declaration, 
but  may  prove   the  assault,  &c.,    on   any  other   day   before   the 
commencement  of  the  action.  (2)      If  the  defendant  justifies   by  go^  assault 
son  assault  on   the  same   day,  and  the  plaintiff   traverses  the  cause  demesne, 
of  justification,   and   at  the  trial  the  defendant  proves  the  trespass 
on  the   same  day,  there  the    plaintiff  cannot  give  evidence  of  an 
assault   on  anotiier   day.  (3)      And   though   the  defendant   should 
prove  the  assault  of  the  plaintiff  on  another  day,  yet  the  plaintiff, 
after    having  made  such  a  traverse,  cannot   prove  another''assault 
on  a  different  day.  (4)  (o) 

The   same  certainty  of  description,  as  to  the   place  or   parish.  Variance  in 
is  not  so  necessary  in  transitory  as  in  local   actions.     In  an  action  P'=**^'^- 
for  non-residence,  where  the    parish   was   described   as  St.  Ethel- 
burgy  and  proved  to  be  St.  Elhelburga,  it  has   been  held,  that  the  ,^j  .    •. , 
variance  was  fatal;  (5)  so  also  it  was,  in   an  action  of  ejectment, 
where  the   premises  v;ere  described   as  situate   in  the  united  par- 
ishes of  A.  and   .8.,  but  were    proved   to  be  in  the  parish   of  */?., 
and   the  two    parishes  were  united  only  for   the  single   purpose  of 
maintaining   the    poor.  (6)      Where  the  premises  were   described 
as  being  in  the  parish  of  St.  George  the  Martyr,  Bloomsbury,  and 

(1)  Lonl  Biilmarino's  cnso;  Lord  (4)  2  Roll.  Ab.  680,  tit.  Evidence, 
Cilmiirnock's  case;  Towniey's  case;  (C),  Art.  .3.  Tliornton  v.  Lyster.  Cro. 
State  Trials.     Fost.  8.  Car.    514,  contra,  (Joiie.s    J.    doiibtin<T,) 

(2)  Co.  Lit.  2S2,  a.b.  2  Roll.  Ab.  Roll.  Ab.  lb.  See  2  Saiind.  5,  nute°3. 
687,  78«,  tit.  Verdict.  (N).  Com.  (3)  WiLson  q.  t.  v.  Gilbert,  2  Bos 
Dig.  tit.  Pleader,  (S.  12.)  &  Pul.  281. 

(3)  Dovvnes  v,  SUrymsher,  Brownl.  (6)  Goodtitio  dem.  Pinset  v.  Lam- 
233.  2  Roll.  Ab.  687, 1.  30,  S.  C.  miman,  2  Campb.  274. 


(y)  See  Note  403,  p.  533.     (z)  See  Note  409,  p.  533.     (a)  See  Note  410,  p.  533. 


216 

Variance  in 
place. 


Immaterial. 


The  Substance  of  Issue  Proved. 


[Ch.  7. 


were  proved  to  be  in  the  parish  of  St.  George,  Bloomsbiiry,  the 
variance  was  held  to  be  fatal.  (1) 

But  where  the  premises  were  described  as  lying  in  the  parish 
of  »/3.  4'  B.,  and  it  appeared  in  evidence  that  part  lay  in  A.,  and 
part  in  B.,  and  that  there  was  no  such  parish  as  the  parish  of  ^. 
and  B.,  the  Court  held,  that  the  word  parish  was  mere  surplusage, 
and  that  the  plaintiff  was  entitled  to  recover  the  lands  in  B.  as 
well  as  in  A.  (2)  So  where  the  premises  were  laid  to  be  in 
the  parish  of  Farnham,  and  were  proved  to  be  in  the  parish  of 
Farnham  Royal,  but  it  did  not  appear  that  there  were  two  Farn- 
liams,  the  Court  held  that  the  variance  was  immaterial.  (3)  But 
if  there  had  appeared  to  be  another  Farnham,  there  would  have 
been  an  uncertainty.  (4) 


Name  of  re- 
pute. 


Matter  of 
venue. 


In  an  action  for  use  and  occupation,  where  the  premises  were 
proved  to  lie  in  the  parish  of  St.  JMary,  Lambeth,  but  were  de- 
scribed in  the  declaration  as  in  the  parish  of  Lambeth,  which 
last  was  the  name  generally  known,  the  variance  was  held  to 
be  immaterial,  (5)  and  this  has  overruled  an  older  case,  where 
a  variance  between  the  parish  of  Chelsae,  and  the  parish  of  St. 
Luke''s,  Chelsae,  was  held  at  nisi  prius  to  be  fatal.  (6)  Although 
it  is  not  necessary,  in  this  action,  to  describe  where  the  premises 
lie,  (7)  yet  if  they  are  described  in  the  declaration  as  situate  in  a 
certain  parish,  and  are  proved  to  be  in  a  different  parish,  the 
plaintifi"  cannot  recover.  (8) 

Where  the  parish  or  place  mentioned  is  a  mere  matter  of  venue, 
and  not  of  local  description,  (as,  in  an  action  for  a  nuisance  de- 
famatory to  the  plaintiff's  ^character,  where  the  declaration  stat- 
ed, that  the  defendant  erected  the  nuisance,  complained  of,  in  the 
parish  of  Jl.,  in  a  street  adjoining   to  the   plaintiff's  house,  &c.) 


(1)  Harris   v.   Cooke,  8   Taunt.  539. 

(2)  Goodtille  dem.  Bremridge  v. 
Walter,  4  Taunt.  671.  See  Sir  C. 
Morgan  v.  Edwards,  6  Taunt.  394. 
The  case  of  Wilson  v.  ClerU,  there- 
fore, (1  Esp.  N.  P.  C.  273,)  seema 
doubtful. 

(3)  Doe  dem.  Tollett  v.  Salter, 
13  East,   9.     R.   v.   Glossop,   4   Barn. 


&    Aid.    619.      Taylor   v.    Hooman,    1 
Moore,  C.  P.  161. 

(4)  Taylor   v.  Hooman,  Holt,    N.  P. 
C.  523. 

(5)  Kirtland    v.   Pounsett,    1    Taunt. 
570. 

(6)  And  see  3  Taunt.  140. 

(7)  King  V.  Eraser,  6  East,  348. 

(S)  Guest   V.    Caumont,    3    Campb. 
235.     6  East,  352. 


ses. 


Sect.  6.]  The  best  Evidence  to  be  Proved.  217 

the  actual   situation  of  the   house   is  immaterial,   and  ths  plaintiff  Variance  in 

'  _       '  phice. 

may   recover,    though   it  should   be  proved   that  tliere  is  no   such 

parish.  (1)  (6) 

0.1  the  trial  of  an  indictment,  it  will  be  sufficient  to  show,  that  Ru'e  in  inJict- 
the  olrence  was  committed  in  some  i)!ace  witnm  the  county  or  oth- 
er division.  r^Ir.  Sergt.  Ha»vkins  soys,  (2)  it  seems  to  be  agreed, 
that  tliis  nVisiake  of  the  place,  in  which  an  offence  is  laid,  will  not 
be  material  upon  the  evidence,  on  the  plea  of  not  guilty,  if  the  fact 
be  proved  at  some  other  place  in  the  same  county.  Even  if  there 
should  appear  to  ba  no  such  parisli,  as  tliat  laid,  in  the  county,  it 
lias  been  doubted  whether  the  indictment  would  be  bad.  (.>)  (c) 

"By  a  recent  statute,  it  is  wiselv  provided  f4)  that  no   iudarment  Juc'gn-ent  not 

J  T     ^  ./I  \    /  J      s  10  be  leversed, 

upon  any  indictn)ent  or  information  shall  be  stayed  or  reversed  for  in  ceriain  cn- 
want  of  the  averment  of  any  matter  that  is  imnecessary  to  be  prov- 
ed, or  because  any  person  is  misdescribe:]  in  the  pieadiugs  in  respect 
of  iiis  office  or  other  descriptive  appellation,  or  on  account  of  the 
omitting  to  state  the  time  of  committing  the  ofTence  where  time  is 
not  of  the  essence  of  the  offence,  or  for  stating  the  time  imperfect- 
ly, or  for  stating  the  offence  to  have  been  committed  subsequent  to 
the  time  of  the  finding  of  the  indictment  or  the  exhibiting  of  the 
information,  or  on  an  impossible  day,  or  a  day  that  never  hapi3en- 
ed;  nor  shall  it  be  stayed  or  reversed  for  want  of  a  proper  or  per- 
fect venue,  when  the  Court  shall  appear  to  hive  had  jurisdiction 
over  the  offence,  (e) 

Sect.   VI. 

The  best  Evidence  is  to  be  Produced^  tohich  the  JVature  of  the  Case 

admits. 

The  next  general  rule  is,  that  the  best  evidence  must  be  given, 
of  which  the  nature  of  the  thing  is  capable.  (5) 

(1)  Jefferltts  V.    Diincnnil)e,  1 1    Eist,         (2)  R.  2,  c!i.  23,  s.  S4.     R.  v.    Daw- 

226;    2    Ciinipl).    3,  S.    C       For    oiliar  liii.;,  1  Ry.  &  Mo.   433. 
exuii|)!e^,    see     Drevvry     v.    T^vi^^,     4  (.!)    II.    v.    D)vvli:i^'.   I    Ry.    Si.    .Mo. 

Tona    lle[j     55S      Friih    v.    Gr.iy.    ib.  433-     And  i.io  3    C.iiii[)b.  73.     But    a.'tj 

561       Ci):>i;).  of  Mcrs-y  &.    Iiwc-ii  N:iv.  a!.sj  9  li.    0,  St.     I,    c     1;    and    BMti'a 

V.    Doii;^l.is,    2    E.»:^t.    4^7.     Ilainar  v.  Just   24ili  ed.  p.  Hi,  M^    case. 
Rayinoud,  5  Tauut.  731).  (4)   7  G.  4.  c.  64,  a.  20. 

(5)  Giltj.  Ev.  13.     Bull.  N.  P.  335. 


(i)  S".n:  Note  41!,  p.  53S.     CO  ^^JO  Note  412,  p.  533.     (c)  Ssa  .\'«tu  413,  p.  53: 

Vol.  i.  23 


218 


The  best  Evidence  to  be  Produced.        [Ch.  7. 


Principle 
the  rule. 


Deed- 


WUl. 


of  The  true  meaning  of  this  jule  is,  not  that   courts  of  law  require 

the  strongest  possible  assurance  of  liie  matter  in  question,  but  that 
no  evidence  shall  be  given,  which  from  the  nature  of  the  thing 
supposes  still  greater  evidence  behind  in  the  party's  possession  or 
power  ;  for  such  evidence  is  altogether  insufficient,  and  proves 
nothing,  but  carries  with  it  a  presuniption  contrary  to  the  inten- 
tion for  which  it  is  produced.  (1)  Thus,  if  a  party  offer  a  copy  of  a 
deed  or  will,  where  he  ought  lo  produce  the  original,  this  raises  a 
presumption,  ihai  there  is  something  in  the  deed  or  will,  which,  if 
produced,  ^vould  make  against  the  parly;  and  therefore  the  copy 
in  such  a  case  is  not  evidence.  But  if  he  prove  the  original  deed 
or  will  to  be  in  the  hands  of  the  adverse  party,  who  refuses  to  pro- 
duce it,  although  he  has  received  a  regular  notice  for  that  pur- 
pose,— or  if  he  prove,  that  the  original  has  been  lost  or  destroyed 
without  his  default, — no  such  presumption  can  reasonably  be 
made,  and  a  copy  will  be  admitted,  because  such  a  copy  is  the  best 
evidence  that  can  be  produced.  (2)  (/) 


ProoF  of  insur- 
ance- 


Registered 
deed. 


On  the  trial  of  a  person  charged  willi  having  wilfully,  and  with 
intent  to  injure  an  assurance  company,  set  fire  to  a  house,  which 
he  had  insured  at  the  company's  office,  it  would  not  be  allowable  to 
prove  the  insurance  by  means  of  an  entry  in  the  company's  books, 
unless  in  the  first  instance  a  regular  notice  has  been  given  lo  the 
prisoner  to  produce  the  policy  at  the  trial;  (3)  but,  if  such  notice 
has  been  given,  then  the  entry  in  the  insurance  books  would  be 
admissible.  So  if  it  should  be  material  for  a  plaintiff,  in  rejdy  (o 
the  case  of  the  defendant,  to  prove  the  contents  of  a  registered 
deed,  which  is  in  the  defendant's  possession,  the  memorial  of  (he 
deed,  or  other  secondary  evidence,  would  not  be  admissible  for  that 
purpose,  unless  there  has  been  previously  a  notice  to  the  defend- 
ant lo  produce  the  original.  (4) 

(1)  Glib.  Ev.  13.  to   tho   cases,     in    which    a     notice    to 

(2)  Gilli.    Ev.  13.     Bull.    323.     Gar-     produce     writings     may     be    dispensed 
nous    V.    ?vv:l't.,    1    Tiiunt.     507,    stiitod     with. 

infra.       Henry    v.     Leigh,     3    Ciiinpb.  (8)   R.  v.    Doran,    1   Esp.    N.    P.    C. 

499,    staled    'iiirra.      Seo     also,     inlVn,  127. 

part  2,  ell.  8    sect    2,    as  lo    the  adiui.s-  (4)   Molton  q.  t.  v.  Harris,  2   Esp.  N. 

siliilily    of    secondary    evidence    in    the  P.  C.  548. 

case   of   written    instruments  ;    and    as 


(/3SecNote414,  p.  540. 


Sect.  6.]       The  best  Evidence  to  be  Produced.  219 

Parol  evidence  is  not  admissible^   to   prove  the  contents  of  a  11-  Licence  to 
cence  to  trade  granted  from  the  crown,  though  the  licence  is  lost, 
because  there  must  be  some  register  of  it  at  the  secretary  of  state's 
office,  and  that  register   would    be    better  than  parol  evidence.  (1) 
Nor  is  parol  evidence  admissible  to   prove  tlie  taking  of  the  oaths 
required  by  the  toleration  act  :  as  the  fact  would  be  regularly  en- '^  ..       ^ 
tered  on  liie  records  of  the  court,  in  which  the  oaths  are  supposed  oaths. 
to  have  been  taken.  (2)  {g) 

The  discharge  of  a  defendant,  by  a  court  of  quarter  sessions,  Discharge  of 
under  an  insolvent  debtor's  act,  cannot  be  proved  by  parol  evi-  '°^° 
dence,  nor  by  proof  of  an  acknowledgment  of  the  discharge  by  the 
plaintiff  himself;  for  the  discharge  may  have  been  irregular  and 
void,  or  may  have  been  mistaken  by  the  plaintiff:  a  judicial  act 
of  this  kind  sliould  be  proved  by  calling  the  clerk  of  the  peace, 
and  giving  in  evidence  the  judgment  or  adjudication  of  the  court 
for  the  debtor's  discharge.  (3)  (/i) 

The  general  rule,  now  under  consideration,  is  strongly  illustrat- 
ed by  the  case  of  Williams  v.  The  East  India  Company,  (4)  where 
the  question  was,  whether  the  defendants  had  put  on  board  the 
plaintiff's  ship  some  articles  of  a  combustible  and  dangerous  kind, 
without  giving  due  notice  of  their  nature  to  the  master  of  the  ship, 
or  to  any  other  person  employed  in  its  navigation  .''  It  appeared  in 
evidence  at  the  trial,  that  the  goods  were  delivered  by  the  officer  of 
the  defendants,  with  a  written  order  to  the  plaintiff  to  receive  them, 
in  which  order  nothing  was  said  as  to  their  nature  ;  that  they 
were  received  by  the  chief  mate  of  the  plaintift"'s  ship,  who  had 
since  died  ;  and  that  no  other  person  was  present  at  the  time  of  the 
delivery.  It  was  further  proved,  by  the  captain  of  the  ship  and 
the  second  mate,  that  no  communication  had  been  made  to  either 
of  them,  nor,  as  far  as  they  knew,  to  any  other  person  on  board. 
Upon  this  evidence  the  plaintiff,  who  had  to  prove  the  negative, 

(1)  Rhind  v.  Wilkinson,  2  Taunt.  |nssumpsit  ;  the  general  issue  pleaded; 
237.  Eyre  v.  Palsgrave,  2  Campb.  ;tlie  defence  was,  that  the  plaintiff  iiad 
605.  heen    so    discharged    after    tiie    cause  of 

(2)  R.  V.  Huhe,  Peake,  N.  P.  C.  action  had  accrued,  and  before  the  com- 
131.  mencement  of  the  suit. 

(3)  Scott  V.    Clare,    3  Campb.  236,  (4)  3  East,  193,  201. 
by    Lord      EUenborough.        Action     of 


(g-)  See  Note  415,  p.  512.     {h)  See  Note  416,  p.  544. 


220  The  best  Evidence  to  be  Produced.         [Ch.  7. 

was  nonsuited,  on  the  ground,  that  he  had  not  given  the  best  evi- 
dence of  the  want  of  notice,  which  it  was  in  his  power  to  produce, 
by  calling  the  company's  officer,  who  delivered  the  articles  on 
board.  And  the  nonsuit  was  afterwards  affirmed  by  the  Court  of 
Best  proof  of  King's  Bench.  "  The  best  evidence,"  said  Lord  Ellenborough, 
ue-jaiue.  jjj  [jujivering  the  opinion  of  the  Court,   "  should  have   been   given, 

of  whicli  the  nature  of  the  case  was  capable.  The  best  evidence 
was  to  have  been  had,  by  calling,  in  the  first  instance,  upon  the 
persons  iaur.ediately  and  officially  employed  in  the  delivering  and 
in  the  receiving  of  the  goods  on  board,  who  appear  in  this  case  to 
have  been  the  first  mate,  on  tlie  one  side,  and  the  military  con- 
ductor, the  defendant's  officer,  on  the  other  ;  and  though  the  one 
of  these  persons,  the  mate,  vv^as  dead,  that  did  not  warrant  the 
plaintiff  in  resorting  to  an  inferior  and  secondary  species  of  testi- 
mony, (namely,  the  presumption  and  inference  arising  from  a  non- 
communication to  the  other  persons  on  board,)  as  long  as  the 
military  conductor,  the  other  living  witness,  immediately  and  pri- 
marily concerned  in  the  transaction  of  ship|)ing  the  goods  on  board, 
could  be  resorted  to;  and  no  impossibility  of  resorting  to  this  evi- 
dence, the  proper  and  primary  evidence  on  the  subject,  is  suggest- 
ed to  exist  in  this  case."  (i) 

It  has  been  already  observed,   that  although  the  best  evidence 
is   to  be    given   which  the    nature    of  the  case    admits,    yet  the 
Proof  of  deed,  strongest  possible  assurance  of  a  fact  is  not  required,  (j)   If  a  deed, 
for  example,  is  attested  by  several  subscribing  witnesses,  the  exe- 
cution may  be  proved  by  one  of  them  :  or,  if  none  of  those  witness- 
es can  be  produced,  proof  of  the  signature  of  one  witness  will  be 
sufficient;  for  the  proof  is,  as  far  as  it  goes,   complete,  and  not  in- 
ferior in  its  kind,  to  any  that  can  be  produced  :  nor    can   it  be  in- 
ferred merely    from    the  absence    of   fmiher  j)roof   of  the  same 
kind,  tiiat   such  additional    proof  uould   be   inconsistent  with  that 
Admission  of    already  [produced,  (/i)      So,  to  prove  the  plaintiff's  demand  sat- 
pa^ment.  jsfied,  the  defendant  may    give  evidence   of  an  admission  by    the 

plaintiffto  that  effect,  thong!)  it  should  appear  that  the  plaintiff 
also  signed  a  receipt,  and  it  may  be  said  thn  receipt  would  be  more 
satisfactory  proof.  (1)  (/)     And,    where  an  agent   for  the  plaintiff 

(1)  Jacob  V.  Lindsay,  1  East,    460-  Smith  v.  Young,  1  Canipb.  439. 


(z)  See  Note  417,  p.  544.     ( j)  See   Note    418,  p.  646.     (fc)  See  Note  419,  p. 
547.     {I)   See  Note  420,  p.  547. 


Sect.  6.j  The  best  Evidence  to  be  Produced.  221 

made  a  verbal  agreement  with  the  defendant,  and  afterwards  put  Written  mem- 
It  down  in  wninig,  (which  was  not  signed  by  the  parties,)  as  a 
memorandum  to  assist  his  recollection,  such  writing  is  not  the 
best  evidence,  nor  indeed  any  evidence  of  the  agreement,  though 
it  may  be  used  by  the  agent  for  the  purpose  of  refreshing  his 
memory.  (l)(?n) 

If  parol  evidence  should  be  offered  to  prove  the  terms  of  a  ten-  Tern-sof 
ancy,  it  is  no  objection  that  there  is  some  written   agreement  rela-   *^"''"'^i" 
tivc  to  the  holding  of  ilie  lands  in  question,  unless  it  should  appear 
that  the  agreement  was  between  the  landlord  and   tenant,   and   that 
it  continued  in  force  down  to  the    period,  to  v.hich   the    parol   evi- 
•dence  applies.  (2)      Nor  would  it    be  a  sufficient  objection  against 
the  admission  of  parol  evidence,  that  a  written  memorandum,    spe- 
cifying the  terms,  had  been  assented  to  by  the  defendant,  if  he  had 
not  signed  the  memorandum,  as  he  had   stipulated   to  do;  for  the 
mcuioiandum  would  not  become  an  agreement,  until   executed    by 
the  defendant;  it  contained  a  mere  proposal,  which   had   not   been 
accepted.  (3)  («) 

In  the  late  prosecution  of  Hunt  for  a  conspiracy,  (4)  the   Court  RRsoluiicns  at 
of  King's  Bench  determined,  that  a  paper,  which  had    been   deliv-  " 

ered  by  the  defendant  to  a  pei'son  present  at  a  meeting,   as  a  co[)y 
of  certain  resolutions  about  to    be    pro[)osed   and  read,   and   which 
was  proved  to  correspond   with  the  resolutions  afterwards    propos-  Piiper  deliver- 
ed, was  properly  received  at  the  trial  as    evidence   of  those  reso-  ^     y  P">o"er. 
lutions;    without  proof  of  any   previous   notice   to   the  defendant, 
to  j)roduce  the  paper  from  which  the  resolutions  were  supposed  to 
be  read.      This   paper  was  considered,   as  against  the  party  him- 
self to  whom  it  applied,  to  be  fully  as  good   evidence  as   any   that 
could  be  produced.      In  the  same  case,  (5)  the  Court  of  K.  B.  held 
that  inscriptions  on  flags  and  banners,  which  had  been  exhibited  to  Inscriptions, 
public  view,  might  be  proved  by  eye  witnesses,    speaking   to  what 
they  had  seen  on  the  occasion;  and    though    it   appeared   that   the 
flags  had  been  seised  and  taken  away   by   police   officers,  (so   that 

(1)  Daiison  V.    Stark,   4   Esp.    N.    P.     wriglit,  3  Barn.    &   Aid.  326.     Stevens 
C.  163.        1  El  St,    460.       Uamsl)ottoin     v.  Pinney,  S  Taunt.  32S. 

V.  Tunbridge,  2  Maulc  &  Selvv.  434.  (4)  Rex  v.    Hunt,    3    Barn.    &    Aid. 

(2)  Doa  d.  Wood  v.  Morris,  12  East,     568,  572.     See  also  Watson's  case,    32 
237.     Doe  v.  Pearson,  12  East,  239,  n.      Howell's  St.  Tr.  6S,  83,  256,  257. 

(3)  Doe     dem.     Bingham   v.  Cart-         (5)  Rex  v.  Hunt,  3  Barn.  &  Aid.  574. 

(m)    See  Note  421,  p.  550.       (n)    See  Note  422,  p.  551. 


222  The  best  Evidence  to  be  Produced.     [Uh.  /. 

they  mi^lit  have  been  produced,)  the  evidence  was  not  considered 
on  this  account  to  be  less  coinpeteul;  such  inscriptions  are,  as  the 
Lord  Chief  Justice  observed,  the  pubhc  expressions  of  the  senti- 
ments of  those  who  bear  them,  and  have  rather  the  character  of 
speeches  than  of  writings. 

r?<*/. "proved  Whether  resolutions,  which  have  been  proposed  at  public  meet- 
by  parol.  ings,  may  be  primarily  proved  by  the  parol  evidence  of  witnesses, 
when  the  person  proposing  tlie  resolutions  ai)peared  to  read  them 
from  a  written  paper,  is  a  much  larger  quesli'tn  ihan  the  one  above 
mentioned.  This  point  appears  to  have  been  much  discussed  in 
the  prosecution  of  Di'.  Sheridan  and  Kirwan,  in  Ireland,  (I)  who 
were  tried  for  an  offence  against  the  Irish  Convention  Act.  The 
indictment  began  with  averring  that  divers  persons  had  assembled 
together,  and  intending  to  procure  the  appointment  of  a  commit- 
tee of  ()ersons,(ofa  particular  description,  and  for  a  specific  object,) 
entered  into  certain  resolutions  respecting  such  committee,  the 
purport  and  effect  of  whicli  resolutions  were  set  out  at  lengih;  the 
indictment  then  proceeded  to  charge  Dr.  Sheridan  wiili  certain 
acts  done  by  him  for  the  purpose  of  assisting  in  forming  such  com- 
mittee, and  for  carrying  into  effect  the  resolutions  l>efore  mention- 
ed. To  prove  the  first  averment,  the  counsel  for  the  prosecution 
called  a  witness,  who  stated,  that  a  general  meeting,  (at  which  it 
was  adcnitted  the  defendants  were  not  present,)  the  secretary  of 
the  meeting  proposed  a  resolution,  and  read  it  from  a  paper.  The 
proposition  was  seconded;  the  secretary  then  handed  the  paper  to 
the  chairman,  and  the  chairman  read  it.  The  witness  was  then 
asked.  What  was  the  resoluiiou.''  This  question  was  objected  to, 
on  the  ground,  that  the  absence  of  the  writing  itself  should  be  ac- 
counted for,  before  any  parol  evidence  of  its  contents  could  be  re- 
ceived. After  a  very  full  argument,  a  majority  of  the  court  were 
of  opinion,  that  this  was  not  a  case  to  which  the  distinction  be- 
tween primary  and  secondary  evidence  was  strictly  applicable. 
That  the  proposed  evidence  was  intended  to  show,  not  what  the 
paper  contained,  but  what  one  person  proposed  and  what  the  meet- 
ing adopted;  in  short,  to  prove  the  transactions  and  the  general 
conduct  of  the   assembly;  and   that   such   evidence   could   not   be 

(1)  1811,  31  Howell'g  St.  Tr.  672. 


Sect.  6.]        The  best  Evidence  to  be  Produced.  223 

rejected,  because  some  person  present  took  notes  of  what  pass- 
ed. (I)  The  form  in  which  ihe  argument  was  presented  hy  the 
solicitor  general,  was  tnore  striking: — "  A  number  of  persons," 
he  said,  "  assemble  and  confer  together — they  agree  to  a  certain 
resolution.  If  it  be  necessary  to  prove  such  a  transaction  in  a 
criminal  trial,  would  ihe  prosecutor  be  bound  to  produce  the  reso- 
lution in  writing.-*  Would  the  prosecutor  be  bound  by  the  man- 
ner in  which  it  was  taken  down  by  one  of  the  confederates?  If 
the  paper,  supposed  to  contain  the  resolution,  were  produced, 
would  that  preclude  the  prosecutor  from  giving  evidence  ot  oilier 
matters  which  took  place. ^  Or  suppose,  further,  that  the  matter 
were  reduced  to  writing  in  such  a  way  as  to  avoid  a  criminal  im- 
putation, alihougli  every  sentence  of  the  debate  or  conversation 
were  criminal,  would  the  prosecutor  be  bound  by  the  former,  and 
precluded  from  giving  evidence  of  the  latter?" 

For  the  purpose  of  proving  hand-writing,  it  will  not  be  neces-  Proof  of  hand- 
sary,  in  the  first  instance,  to  call  the  supposed  writer  himself;  the 
evidence  of  persons,  well  acquainted  with  the  general  character  of 
his  writing,  who,  on  inspecting  the  paper,  can  say,  that  they  be- 
lieve it  to  be  his  hand-wriiing,  will  of  itself  be  sufficient.  Such 
evidence  is  not  in  its  nature  inferior  or  secondary;  and  though  it 
may  generally  be  true,  that  a  writer  is  best  acquainted  with  his 
own  hand-wiiting,  and  therefore  his  evidence  will  generally  be 
thought  the  most  satisfactory,  yet  his  knowledge  is  acquired  pre- 
cisely by  the  same  means  as  the  knowledge  of  other  persons,  who 
have  been  in  the  habit  of  seeing  him  write,  and  differs  not  so  much 
in  kind  as  in  degree.  The  testimony  of  such  persons,  therefore, 
is  not  of  a  secondary  species;  nor  does  it  give  reason  to  suspect,  as 
in  the  case  where  primary  evidence  is  withheld,  that  the  fact,  to 
which  they  speak,  is  not  true.  It  is  the  common  practice  to  re- 
ceive such  evidence  in  ordinary  cases;  as,  where  the  signature  of 
a  magistrate,  on  a  deposition  taken  before  him,  is  to  be  proved,  it 
is  usually  proved  by  a  witness  acquainted  wiih  the  general  char- 
acter of  his  hand-writing  without  the  evidence  of  liie  magistrate 
himself,  (o) 

But  where  the  object,  which  a  party  has  in  view,  ts  to  disprove  Disproving  of 

hiiiulvvriiing 
(1)  One  of  llie  judges  held,  ihal  llic  evidance  was  iaadmi.-siblo.  "'  S*-"''^'^'''' 

(o)  See  Note  423,  p.  553. 


224  The  best  Evidence  to  be  Produced.         [CIi.  7. 

band-wriling,  and   proved  it  forged,  the  most   aulheniic  and   most 
satisfactory  trial   of  the   question  seems  to  be,  by  resorting   to  the 
information  of  the   snpi)Oscd  writer   himself,   in  preference  to  the 
evidence  of  third    persons,  however  well  acquainled   such    persons 
may  be  with  the  general  si)  le  of  the  snp])0sed    writer's  hand-writ- 
ing, (supposing,  of  course,  that   he  is  not  disqualified   by  interest, 
as   a    pariy  to   ihe   suit,    nor    for   any   other   cause   incompelent ;) 
for  a   genuine  and    true  signal ure   may    possibly,    either   from  ac- 
cident or  inleniion,  be  a    deviaiion  from  the  general    form  or  char- 
acter i)f  the   writer's  style,  in   which   case   a  witness,  who  judges 
merely   from  the  impression  produced  on  his  mind  by  such  general 
character,  is  likely  to  be  deceived,  and  would   probably  conclude, 
that  a   signature,  so   unlike  the  usual   slyle  of  writing,  must    have 
been  forged:  whereas,  if  the  person,  by  whom  the  signature   pro- 
fesses to    be   made,  were  himself  to  be   called   as  a   witness,  be 
might  be  able  (o  state  some    peculiar  circumstances  within  his  own 
knowledge,  and   give  such  decisive   proof,  with  regard   to  the  sig- 
nature in  question,  as  at   once  to   remove  all   doubt  respecting  its 
genuineness. 

Disproving  of       j{  {,;^g  ]^qqx\  held,  however,  in  a  prosecution  for  the  forgery  of  a 

siguiiture  oi  '       .  .       '  ,  •  r     i 

Laiikclerli.  bank  note,  that  the  signature,  m  the  name  ot  the  cashier  ol  the 
bank,  may  be  disproved  by  any  person  acquainled  will)  his  hand- 
wriiing,  (1)  though  the  cashier  himself  would  not  be  an  incom- 
petent witness.  (2)  And  it  is  the  common  practice  to  disprove 
the  signature  of  the  entering  bank  clerk  by  this  sort  of  evidence. 
In  such  prosecution,  it  may  be  observed,  there  is  commonly 
some  other  proof  of  forgery,  independent  of  the  forgery  of  the 
signature,  (in  the  lextm-e  of  the  paper,  for  instance,  in  the  en- 
graving, the  ink,  the  date,  &c.,)  which  additional  proof  would 
very  materially  confirm  the  other  part  of  the  case,  as  to  the  for- 
gery of  the  signature.  However,  it  must  be  admitted,  if  the 
proof  of  the  forgery  of  the  signature,  by  the  evidence  of  persons 
acqtiainted  with  the  hand-writing  of  the  cashier  or  entering 
clerk,  were  in  iis  own  nature  incompetent  and  inadmissible,  as 
being  secondary  proof,  the   additional  evidence   of  the  forgery  in 

(1)  Bv   Le     Diunc   J.,    in    Hughes'        (2)  Newland's  case,  I7S4,  2  East,  P. 
case.  1802,  2  Eiist,  P.  C.    1002.     Exe-     C.  1001. 
tei    Sp     Ass.     Case  of  Bank   Prosecu- 
tions, Kuss.  &   Ry.  Cr.  C.   3S0,  S.    P. 


Sect.  6.]       The  best  Evidence  to  be  Produced.  225 

other  party,  confirmatory  as  it  may  be,  would  certainly  not  have 
the  effect  of  rendering  such  proof  admissible.  On  what  specific 
ground  this  evidence  was  admitted  in  the  case  above  referred  to — 
whether  on  account  of  the  inconvenience,  hkely  to  result  from  re- 
quiring the  attendance  of  the  bank  clerk,  who  might  possibly  be 
equally  wanted  in  similar  prosecutions  in  other  places  at  the  same 
time — or  whether  on  the  supposition,  that  the  signatures  of  an 
entering  clerk,  who  had  merely  signed  officially,  and  was  not  in 
any  degree  personally  interested,  were  not  likely  to  vary,  and  would 
generally  preserve  an  uniform  and  unvaried  style  of  writing — or 
whatever  other  reason  might  be  assigned — the  short  note  of  the 
case  does  not  enable  the  reader  to  decide. 

However,  this  case  does  not  appear  to  have  decided  the  general  Disproving  of 
'  '  '  '-'  other  person  8 

proposition,  that,  in  any  prosecution  for  forgery,  where  the  person,  signature. 

whose  hand-writing  is  supposed  to  be  forged,  woidd  be  a  compe- 
tent witness,  the  writing  may  be  disproved  by  others  who  are  ac- 
quainted with  the  character  of  his  hand-vt^riting,  without  the  con- 
current testimony  of  thai  person  himself.  And  in  an  earlier  case, 
in  which  the  captain  of  a  ship  was  charged  with  having  made  al- 
terations in  a  tradesman's  receipt,  with  intent  to  defraud  the  ship- 
owner, (1)  two  judges  (Mr.  Justice  Gould  and  Mr.  Justice  Yates) 
held,  that  the  evidence  of  a  partner  of  the  tradesman  could  not  be 
admitted  to  prove  the  altered  parts  of  the  receipt  to  be  forged,  but 
that  the  evidence  of  the  person  himself,  in  whose  name  the  altera- 
tions purported  to  have  been  made  (who  was  not  proved  to  be  dead, 
and  who  would  have  been  a  competent  witness,)  was  indispensa- 
bly necessary.  They  considered  that  his  testimony  would  be  the 
best,  as  he  could  certainly  give  the  most  satisfactory  evidence  on 
the  point,  whether  the  alterations  in  his  bill  were  his  own  correc- 
tions, or  were  forged  by  some  other  hand,  whereas  the  partner 
could  only  speak  from  opinion  :  and  it  was  an  established  rule, 
they  said,  that  in  all  cases  the  best  evidence  should  be  given  which 
the  nature  of  the  case  will  admit;  and  less  than  that  can  never  be 
received,  if  it  appear  that  better  might  have  been  supplied,  (p) 

(1)  Capt.  Smith's  case,  O.  B.  1768.  2  East,  P.  C.  1000.  And    vide  supra,     p. 
223,  224. 

(fi)  See  Note  424,  p.  554. 

Vol.  I.  29 


226 


Tht  best  Evidence  to  be  Produced.         [Ch.  7. 


The  rule,  wliich  requires   the  best  evidence  to  be   produced,  is 
dispensed  with  in  the  following  cases: 


1.  Entry  in 
public  book. 


1.  Where  it  is  necessary  to  prove  an  entry  in  a  public  book,  the 
original  need  not  be  shown  ;  but,  from  a  principle  of  general  con- 
venience, an  examined  copy  will  be  admitted.  (1)  (q) 


2  Proof  of 
public  officer. 

Revenue 
officer. 


Surrogate. 


Military  offi- 
cer. 


Collector  of 
taxes. 


Under  sheriff. 


2.  In  the  case  of  all  peace-officers,  justices  of  the  peace,  consta- 
bles, &c.  it  is  sufficient  to  prove,  that  they  acted  in  these  charac- 
ters, without  producing  their  appointments.  (2)  (r)  And  in  the 
case  of  officers  of  any  branch  of  the  revenue,  where  the  question  is 
whether  they  are  such,  proof  of  being  reputed  to  be  so,  or  of  hav- 
ing exercised  the  office,  is  good  evidence  of  the  fact,  on  any  indict- 
ment, information,  action,  or  prosecution.  (3)  On  an  indictment 
for  perjury,  committed  by  the  defendant  before  a  surrogate  in  an 
ecclesiastical  court,  proof  that  the  person  who  administered  the  oath, 
acted  as  surrogate,  has  been  held  to  be  sufficient  prima  facie  evi- 
dence of  his  appointment  and  authority.  (4)  On  an  information 
against  a  military  officer  for  making  false  returns,  it  is  sufficient  to 
prove,  that  he  acted  in  the  character  alleged  in  the  charge,  with- 
out adducing  direct  evidence  of  his  appointment.  (5)  In  an  action 
for  penalties  against  a  collector  of  taxes,  proof  of  his  collecting  the 
taxes  is  sufficient  proof  of  his  being  collector,  though  his  appoint- 
ment is  by  warrant  under  an  act  of  parhament.  (6)  And  proof  of 
a  person's  acting  as  under-sheriff  is  sufficient  proof  of  his  authority 
to  do  any  act  necessary  in  the  course  of  the  office;  as,  for  instance, 
to  make  an  assignment  of  a  lease,  under  an  execution,  in  the  name 
of  the  sheriff.  (7)  (s) 


3.  Proof  by  3,    There  are  other   instances   in   which  strict  proof  is  made 

admission  of  .  ,  •  i  •  i  i        1 

party.  unnecessary,   because    the  party,   agamst   whom  it   would  other- 

wise be   requisite  to  produce  proof  of  the   particular  fact,  has   by 

(1)  See  infra,  part  2,  c  fi,  ad  fincm.  (4)    Rex  v.    Verelst,  3    Canipb.   432. 

(2)  By    Duller,     J.    in    P.errymnn   v.     Rex.   v.     Creswell,     Lond.     Silt,     after 
Wise,    4  T.    R.    366.     By    the'  opinion     Mich.  1816,  S.  P. 

of  ail  the  judgps  in  the  case  of  the  Gor-         (5)  R.  v.  Gardner.  2  Campb.  513. 
dons,  tried  for    murder  in    1789,  Leach,  (6)   Lister,  q.  t.  v.    Priestly,    White- 

Cr.  C.  585.  "ick.  Rcp-  ^7. 

(3)  St.  26  G.  3,    c.  77,  s.    18,  st.  26  (7)   Doe   dem.   James    v.    Brawn,    5 
G.  3,  ch.  82,  s.   G;  and  see  st.    11  G.  1,  Earn    &  Aid.  213. 

ell.  30,  s.  32. 


(5)  See  Note  425,  p.  55.L     fr)  See  Kote  426   n.  .^54.     (s)  See  Note  427,  p.  5*^' 


Sect.  6.]  The  best  Evidence  to  be  Produced.  227 

his  conduct  precluded  himself,  in  the  way  of  estoppel,  from  dis- 
puting the  fact.  (1)  (0  There  are  few  cases,  indeed,  in  which  a 
person's  acts  operate  against  him  as  an  estoppel,  though  they  may 
often  be  used  as  good  |)7-tma/acie  evidence  against  him.  (2)  Such 
is  the  rule  in  an  action  against  clergymen  for  non-residence,  in  Receipt  of 
which  it  is  reasonable  that  the  acts  of  the  defendant  as  parson,  *'^'^**- 
and  his  receipt  of  the  emoluments  of  the  church,  should  be  evi- 
dence against  him  of  his  being  parson,  without  formal  proof  of  his 
title.  (3)  (m) 

In  an  action  by  a  person,  as  farmer  and  renter  of  tolls,  appointed  Accounting 
under  an  act  of  parliament,  for  tolls  due  at  a  turnpike  gate,  al-  ^'  ^""  ^'^' 
though  the  plaintiff  will  not  be  entitled  to  recover  on  the  special 
count,  luiless  he  has  been  legally  appointed  collector  of  the  tolls, 
yet,  if  the  defendant  has  accounted  with  him  in  that  character,  the 
want  of  a  formal  appointment  will  not  preclude  him  from  recover- 
ing on  an  account  stated.  (4) 


In  an  action  for  penalties   under  the  post-horse  act,  brought  by  Accounting 
the  plaintiff  as  farmer-general,    proof  of  his   appointment  was  dis- ^^J!"^^""® '"  ^'" 
pensed  with,  because  the  defendant  had  previously  accounted  with 
him  as  farmer-general.  (5)      In  an  action  for  subtraction  of  tithes,  Acknowledg- 
proof  of  the  defendant's  former  acknowledgment  of  the   plaintiff's  „„  farmer  od 
title  to  the  tithes  was  thought  to  be  sufficient  evidence,  as  against  casions. 
the  defendant  a  wrong-doer.  (6) 

In  an  action  against  the  defendant  for  slander,    in  charging  the  Admission  on 
plaintiff  with  being  a  swindler,  and  threatening  that  he  would  have  occasion. 
him  struck  off  the  roll  of  attornies,  the  Court  was  of  opinion,  that 
the  defendant's  threat    amounted    to    a    distinct  acknowledgment 
that  the  plaintiff   was    an    attorney,    and    dispensed  with  further 
proof.  (7) 

(1)  By  Chambre,  J.,  Smith  v.  Tay-  (5)  Radford  q.  t.  v.  Macintosh,  3 
lor,  1  Bos.  &  Pul.  N.  R.  210;  and  T.  R.  632.  And  see  Cross  v.  Kaye, 
seethe  cases  cited  supra,  p.  89.  6  T.  R.    663,   and    I    New   Rep     205, 

(2)  By   Chambre,   J.    I    New    Rep.  211. 

210.  (6)  1    Bo3    &    Pul.    N.    R.    210.     3 

(3)  By  Chambre,  J.  1  New  Rep.  T.  R.  635.  4  T.  R.  366-  Chap- 
210.  Bevan  q.  t.  v.  Williams,  n.  (a,)  man  v.  Beard,  3  Anstr.  492.  4  Gwill. 
3  T.  R.  635.  1483,  S,   C. 

(4)  Peacock  v.  Harris,  10   East,  104.  (7)  Berryman  v.  Wise,  4  T.  R.  366. 


CO  See  Note  428,  p  656.     («)  See  Note  429,  p  566. 


228  The  best  Evidence  to  be  Produced.         [Ch.  7. 

The  principle  to  be  extracted  from  these  cases  seems  to  be,  that 
where  a  defendant,  in  the  course  of  the  transaction,  on  which  the 
action  is  founded,  has  admitted  the  title,  by  virtue  of  which  the  plain- 
tiff sues,  it  amounts  to  /jrinia/acic  evidence,  that  the  plaintiff  is  enti- 
tled to  sue.(l)  Upon  this  principle  two  of  the  Judges  of  the  Court  of 
Common  Pleas  were  of  opinion,  that  the  plaintiff  was  entitled  to  re- 
WcrJs  imply-  covcr  in  the  case  of  Smith  v.  Taylor.  (2)      That  was  an  action  for 

ingqaalifica-     defamation,  in   which  the   plaintiff  averred,  that   he  was  a   nhysi- 
tioi).  '        ,  '     -^ 

cian,  and  exercised  the  profession,  and  that  the  words  were  spoken 

concerning  him  as  a  physician.  It  appeared,  that  the  words  did 
not  impute  want  of  qualification  by  degree,  but  only  want  of  skill 
in  practice;  and  that  the  defendant  called  the  plaintiff  "  Z)r.  S.," 
when  he  spoke  the  words:  and,  further,  the  defendant,  as  an 
apothecary,  had  followed  the  directions  of  the  plaintiff,  as  a  physi- 
cian, in  the  business  out  of  which  the  cause  of  action  arose.  These 
circumstances  were  considered  by  the  other  judges,  sufficient|)nw« 
Words  not  so/«c?e  evidence  of  the  plaintiff's  qualification.  On  the  other  hand, 
implying.  if  the  words  imply  a  charge,  that  the  plaintiff  was  not  qualified  to 
act  in  the  particular  character  which  he  assumed,  it  has  been  held 
that  the  qualification  ought  to  be  proved,  and  that  it  will  not  be 
sufficient  to  show  his  acting  in  that  cajiacity.  (3)  And  where  the 
words  imply  merely  ignorance  or  negligence,  without  admitting 
the  plaintiff  to  be  qualified,  and  the  plaintiff  avers  that  he  is  quali- 
fied, he  will  be  bound  to  prove  his  qualification.  (4)  {v) 

Admissions.  The  proof  of  an  admission  of  a  fact  by  a  party  to  the  suit  has, 

in  many  cases,  been  considered  sufficient  to  dispense  with  the 
strict  and  regular  proof,  which  would   otherwise   have  been  neces- 

Of  assignment  sary.  If  a  lessee  acknowledges,  that  he  has  assigned  the  lease 
to  another  person,  this  is  evidence  against  him  of  his  having  trans- 
ferred all  his  interest  in  the  premises,  though  an  assignment 
can  only  be  effected  by  some  instrument  in  writing.  (5)  And  ad- 
mission by  the    defendant,    that    a    third    person  had  become  a 

(1)  By  Healh,  J.    I    New  Rep.  208.      Ch.  J.  in  I  New  Rep.  204,  207  Pick- 

(2)  1  New  Rep.    197,    by  Miinsfielfl,      ford  v.    Gutch,  8   T.   R.    305,  n.    (a); 
Ch.   J.    and  Heath,   .f.  ;  but    Rock,  J.      Moises  v.  Thornton,  8  T.  R.  3'.3. 

and  Chambre,  J.  were   of  opinion,   that  (4)  See  1  New  Rep.  204,  207. 

the  words  did   not    admit    the  qualifica-  (5)    Doe   dem.    Lowden   v.  Watson, 

t'lon.  2  Starkie,    N.  P.  C.  230. 

(3)  See  the   judgment  of  Mansfield, 


(r)  See  Note  430,  p.  556. 


Sect.  7.]  Hearsay  not  Evidence.  229 

bankrupt,  is  evidence  of  the  bankruptcy,   in  an  action  brought   by  Ofbankrnptcy. 
the  assignee  of  the  bankrupt;  and  will   dispense  with    the   necessi- 
ty of    going  through  the  fornfial  proof  of  the  trading  and  act  of 
bankruptcy,  as  in  ordinary  cases.  (1)      So,  if  the  defendant  has  ac- of  composition 
knowledged,   that  he  agreed   to  pay   a  certain  sum  of  money  for  '^'"  ^'^'^'^^• 
tithes  leased  to  him  by  the  plaintiff,  this  will  be  sufficient  proof  of 
the  agreement,   in  an  action  on  a   composition  for  tithes,  although 
it  appear  that  the   agreement  is   in   writing,   and   in  the   plaintiff's 
possession,  (w) 

Sect.  VII. 

Hearsay  is  not   Evidence. 

Hearsay  evidence  is  the  statement  which  a  witness  professes  to  Hearsay, 
have  heard  given  by  a  third  person,  as  to  some  particular  transac- 
tion or  thing;  literally,  what  the  witness  says  he  heard  another 
person  say.  Tl)is  is  hearsay  in  \\\e  first  degree.  If  the  supposed 
third  person  stated  the  alleged  fact,  not  as  being  within  his  person- 
al knowledge  or  experience,  but  as  something  which  he  had  heard 
from  another,  it  is  hearsay  in  the  second  degree  at  the  nearest,  per- 
haps in  a  much  remoter  degree.  Hearsay  is  not  admitted  in  our 
courts  of  justice,  as  proof  of  the  fact  which  is  stated  by  a  third 
person.  This  general  rule  (subject  to  certain  exceptions,  hereafter 
to  be  mentioned)  has  been  recognized  and  approved,  from  the  earli- 
est times,  as  a  fundamental  principle  of  the  law  of  evidence,  and 
is  always  to  be  strictly  observed,  [x)  Some  of  our  earliest  writers 
lay  it  down  as  a  proposition,  acknowledged  in  our  courts,  and  not 
to  be  questioned,  that  matters  of  fact  shall  be  tried  by  proof  of  wit- 
nesses, upon  oath,  before  the  judges.  (2)  This  implies,  that  the 
person  on  whose  statement  any  fact  is  to  be  proved,  must  be  sworn 
in  the  regular  form,  and  speak  to  the  fact  from  his  own  personal 
knowledge,  in  open  court,  at  the  time  of  trial,  {y) 

It  is  a  general  principle,  then,  in  the  law  of  evidence,  thai  if 
any  fact  is  to  be  substantiated  against  a  person,  it  ought  to  be 
proved   in   his   presence   by   the  testimony   of  a  witness  sworn  to 

(1)  Maltby,  assignee  of  Dourouveray  &  Mo.  187.     Scott  v   Clare,   3   Campb. 

V.  Christie,  1  Esp.  N.  P.  C.  340,  cited  16  236,  stated  supra,  p.  219. 
East,  193.  Dickenson,  assignee  of  Booth,         (2)      Sheppard's     Abridgment,     title 

V.  Coward,  1  Barn.  &  Aid.  677,  stated  "  Tryal."     Roile's  Abridgment, 
in  vol.  ii.     See  Bloxam  v.  Elsie,    1    Ry. 

(w)  See  Note  431,  p.  556.     (x)  See  Note  432,  p.  559.  {y)  See  Note  433,  p.  56S. 


230  Hearsay  not  Evidence.  [Cli.  7. 

speak  the  truth;  and  the  reason  of  tlie  rule  is,  because  evidence 
ought  to  be  given  under  the  sanction  of  an  oath,  and  that  the  per- 
son who  is  to  be  effected  by  the  evidence,  may  have  an  opportuni- 
ty of  interrogating  the  witness,  as  to  his  means  of  knowledge,  and 
concerning  all  the  particulars  of  his  statement,  {z) 

Letters  or  private  papers  written  by  a  third  person,  are  open  to  the 
same  objection  precisely,  in  point  of  principle,  as  hearsay  declara- 
tions; being  statements  made  without  oath,  and  not  in  the  pres- 
ence of  the  party,  who  would  be  prejudiced  by  them.  In  one  re- 
spect, indeed,  there  is  a  difference  between  written  and  oral  state- 
ments; that  the  former  are  more  easily  proved  to  be  genuine  than 
the  latter.  A  written  accoiuit  is  proved  to  be  genuine,  by  proof  of 
the  hand-writing;  whereas  the  genuineness  of  mere  oral  declara- 
tions must  depend  upon  the  memory  and  accuracy  of  the  witness 
who  professes  to  repeat  them.  But  this  distinction,  it  is  evident, 
relates  only  to  their  comparative  value,  and  cannot  affect  the  ques- 
tion of  their  admissibility,  (a) 

The  most  convenient  order  for  treating  this  subject  will  be, 
first,  to  mention  certain  cases,  clearly  distinguishable  from  cases  of 
hearsay;  and  then  to  state  the  exceptions  to  the  general  rule. 

Testimony  on  First,  the  testimony  of  a  deceased  witness,  (6)  who  has  been 
former  trial,  examined  upon  oath,  on  the  trial  of  a  former  action  (c)  between 
the  same  parties, (c?)  and  where  the  point  in  issue  is  the  same(e)  as 
in  the  second  action,  is  admissible  (/)  on  the  trial  of  the  second  ac- 
Witness  dead,  tio"?  3"^  ^^^Y  ^^  proved  by  one  who  heard  him  give  evidence, (I) 
for  such  evidence  on  the  former  trial  was  not  given  in  an  extra- 
judicial manner,  but  upon  oath:  the  parties  to  the  suit  were  the 
same,  the  point  in  issue  was  the  same,  and  an  opportunity  was 
given  for  cross-exaniination.  These  circumstances  plainly  dis- 
tinguish the  proposed  evidence  from  hearsay.  So,  where  a  per- 
son,  who   had   been   sworn    on  a   former  trial  between   the   same 

(1)'  R.    V   Carpenter,   2   Show.    47.  563.      Pike   v.    Crouch,    1    Ld.    Raym. 

Duckworth's  case,  Sir  T.    Raym.    170.  7.30.     By  Lord  Kenyon,  4    T.    R.    290. 

Vin.  Ab.    "  Evidence,    (T.    b.    S8.)  pi.  Mayor  of"  Doncaster  v.  Day,  5  Taunton, 

4.       Coker   v.    Farewell,    2   P.   Wnis.  262. 


(2)  See  Note  434,  p.  569.  (a)  See  Note  435,  p.  569.  (6)  See  Note  436,  p.  571. 
(c)  See  Note  437,  p.  671.  (d)  See  Note  438,  p.  572.  («)  See  Note  439,  p.575. 
(/)  See  Note  440,  p.  575. 


Sect.  ?.]  Hcarsaij  not  Evidence.  231 

parties  on  ihe  same  issue,  and  subpoenaed   to  appear  as  witness  at 

a  second  trial,  did  not  appear  in  obedience  to  the  writ,  the  Court  of 

Kina's  Bench,  seeing  reason  to  believe  that  he  had  been  kept  away  Witness  kept 

f  .  ;?,,  j-ji-  away, 

by  the  contrivance  ol   the  adverse  party,  admitted  other  witnesses 

lo  prove  what  he  had  sworn  on  the  former  occasion.  {I)  (g) 

It  has  been  laid  down,  in  Lord  Palmerton's  case,  that  the  person  How  proved, 
called  to  prove  what  a  deceased  witness  said  on  the  former  trial, 
must  undertake  to  repeat  precisely  his  very  words,  and  not  merely 
to  swear  to  their  effect.  (2)  And,  in  a  case  before  Lord  Kenyon,  a 
witness  was  not  allowed  to  speak  to  the  effect  of  what  the  deceas- 
ed witness  had  sworn.  "  He  ought,"  said  Lord  Kenyon,  "  to  rec- 
ollect the  very  words;  for  the  jury  alone  can  judge  of  the  effect  of 
words."  (3)  This,  it  is  conceived,  can  only  mean,  at  the  furthest, 
that  he  must  be  able  to  speak  to  the  identical  words  of  the  former 
witness,  when  it  is  essential  that  the  very  identical  words  should 
be  known.  In  some  cases,  proof  of  the  substance  of  the  former  evi- 
dence may  be  as  satisfactory  as  proof  of  the  identical  words,  unless 
the  witness  can  undertake  (what  is  not  possible)  to  deliver  the 
same  words  precisely  with  the  same  manner,  and  in  the  same 
tone,  (/t) 

For  the  purpose  of  introducing  an  account  of  what  a  deceased  Proof  of  for- 
.  ,     ,       ...  Ill  ^^^  t""'^'- 

witness  swore  on  the  first  trial,  the  nisi  prius  record  and  the  postea 

indorsed  are  good    evidence  to  show,  that  a  cause  was  brought  on 

for  trial,  or  that  it  was  actually  tried.  (4)  (i) 

Secondly,  hearsay  is  often  admitted  in  evidence,  as  constituting  Hearsay,  part 
P     ,  .  1  •    I     •        1  1  •  c  •        •  I       of  the  trans- 

a    pari   ot   the    transaction   whicii   is    the   subject  oi  inquiry;  the  action. 

meaning  of  which  seems  lo  be,  that  where  it  is  necessary  in  the 
course  of  a  cause  to  inquire  into  the  nature  of  a  particular  act,  or 
the  intention  of  ihe  person  who  did  the  act,  proof  of  what  the  per- 
son said  at  tiie  time  of  doing  it,  is  admissible  in  evidence,  for  the 
purpose  of  showing  its  true  character.  ( j)  Thus,  for  example,  Declaration  o' 
in  an   aciion  by  the   assignees  of  a  bankrupt,  the   declarations   of  gentin„_ 

(1)  Green     v.   GaturU,  Bull.    N.    P.  (3)  Ennis     v.    Domisthorne,   Cornw. 
243.  Sum.    Ass.    17S9,    MS.     Lord    Kenyon 

(2)  Lord     Palmerton's  case,    cited  cited    the   case   of  the   King   v.    Debo- 
by   Lord    Kenyon,    in  R.  v.    Joliffe,   4  rah,  from  one  of  his  own  notes. 

T.  R.  280.  (4)  Pitton  v.  Walter,  1  Str.  162. 


(g)  See  Note  441,  p.  576,     (A)  See  Note  442,  p.  578.     (f)  See  Note  443,  p.  586. 
(  ;■)  See  Note  444,  p.  585. 


232  Hearsay  not  Evidence.  [Ch.  7. 

Part  of  res        the  trader  at  the  time  of  his  absenting  himself  from  home,  or  im- 

mediately  subsequent,  are  properly  received  in  evidence,  to  show 

the  motive  of  his  absence:  for  it  is  the  intent  with  which  he  de- 
parted from  his  dwelling-house,  that  constitutes  the  act  of  bank- 
ruptcy. (1)  {k) 

In  making            A  Statement   by  a  purchaser  of  goods  at  the  time  of  the   pur- 
purchases.  ,  1  •    ■         •      •         I  ■       1  1  ,      . 

cnase,  as  to  his  intention  \n  making  the  purchase,  is  admissible,  m 

an  action   by  the  assignees  of  a   bankrupt,  when  the   question   is, 

whether  the  person  sought  his  living  by  buying  and  selling.  (2) 

Statement  by  For  the  same  reason,  letters  written  by  the  payee  of  a  promisso- 
payee  of  note.  ,.y  pQjg  (q  {[^g  niaker,  contemporaneous  with  the  making  of  the 
note,  and  forming  a  part  of  the  original  transaction,  are  admissible 
in  evidence,  to  prove  the  consideration  passing  beiween  the  par- 
ties; and  this  also  in  an  action  by  the  indorsee  against  the  mak- 
er. (3)  It  cannot  be  more  necessary  to  call  the  parly  who  wrote, 
than,  in  the  case  of  a  verbal  agreement,  to  call  the  party  who 
spoke  the  words.  A  written  agreement  is  proved  by  the  writing, 
as  a  verbal  agreement  may  be  proved  by  a  witness  who  heard  the 
parties  agree.  (Z) 

Statement  in          I"  'he  case  of  Thompson  and   wife  against   Trevanion,  which 
receiving  per-   ^ygg  ^^  action  of  Trespass  and  assault,  Lord   C.  J.  Holt  allowed 

sonal  injury.  ... 

what  the  wife  said,  immediately  on  receiving  the  hurt,  to  be  given 
in  evidence.  (4)  Inquiries  by  medical  men,  with  the  answers  to 
such  inquiries,  are  evidence  of  the  state  of  health  of  the  patient  at 
the  lime;  such  evidence  is  admissible  from  the  very  nature  of  the 
thing.  (5)  And  it  is  in  every  day's  experience,  that  what  a  man 
has  said  of  himself  to  his  surgeon,  is  evidence  in  an  action  of  as- 
sault, to  show  what  he  has  suffered  by  reason  of  the  assault.  (6)(w) 

(1)  Ambro.se  V.  Clindon,  Rep.  temp.  Hathaway,  14  Howell's  St.  Tr.  654. 
Hard.  267.  Marsh  v.  Meager,  1  Du  Bost  v.  Beresford,  2  Campb.  512. 
Starkie,  N.  P-  C  353.  See  on  this  Collenridge  v.  Farqiiharson,  1  Star- 
Bubject,  vol.  2,  part  2.  kie,  N.  P.  C.  261.     Bull.  N.  P.  17. 

(2)  Gale  v.  Halfknight,  3  Starkie,  (4)  Skinn.  402,  cited  by  Lord  El- 
N.  P.  C.  58.  lenborough  in  6  East,  193. 

(3)  Kent  v  Lowen,  1  Campb.  177.  (5)  By  Lord  Ellenborough,  6  East, 
180,    d.     For    other  examples    in    illus-  195. 

tralion   of  the   same   rule,   see   Rex   v.         (6)  By  Lawrence,  J.,  6  East,  198. 

(fe)  See  Note  445,  p.  586.     (/)  See  Note  446,  p.  587.  (m)  See  Note  447,  p.  58T. 


Sect.  7.]  Hearsay  not  Evidence.  233 

In  the  case  of  Aueson  v.  Lord  Kinnaird,  (1)  (where,  in  an  action  f^i"'  ofresges- 

on  a  poHcy  of  insurance  of  a  life,  in  order  to  ascertain  whether  the 

deceased  was  in  a  good  state  of  heahhonthe  day  of  the  insurance,  Representation 
.    I  -1  •!  1^1  »^riii  II    of  deceased  as 

it  became  material  to   consider  wliat  the   state  ot  health  was  both  to  state  of 

before  and  after  that  day,)  the  account,  which  the  deceased  gave  health. 
some  days  after  obtaining  the  certificate  of  good  heahh,  respecting 
her  state  on  the  former  day,  was  admitted  at  the  trial,  as  evidence 
on  the  part  of  the  defendant;  and  the  Court  of  King's  Bench  were 
of  opinion,  that  it  had  been  j)roper]y  admitted.  The  Judges  held 
the  evidence  unexceptionable,  on  general  principles,  as  the  account 
of  the  deceased  concerning  her  existing  state  of  health,  which  was 
ihe  subject  of  inquiry;  they  considered  it  admissible  also  in  anoth- 
er point  of  view,  for,  as  the  surgeon,  who  had  given  the  certificate, 
and  who  was  called  as  witness  on  the  part  of  the  plaintiff,  had 
formed  his  opinion  of  the  state  of  health  of  the  deceased  principal- 
ly from  the  answers  she  had  given  to  his  inquiries,  it  was  only  a 
species  of  cross-examination  of  the  same  witness,  to  shew,  from 
what  the  deceased  had  said  of  herself  to  another  witness  very  re- 
cently before,  that  she  was  not  really  well  on  the  day  when  she 
gave  that  account  to  the  surgeon.  (2) 

The  account  given  by  a  person,  in  answer  to  the  questions  of  a  Effect  of  such 
medical  man,   it  is  to  be   observed,  is  evidence  of  complaints  and  evidence, 
symptoms,  and   of  what  the  person  suffers   from  his  bodily   state, 
when  an   inquiry  into  such  particulars  is  material ;  but  it  is  not  ev- 
idence to  charge  another  person  as  the  cause  of  those  sufferings, 
nor  is  such  an  account  any  evidence  of  the  truth  of  tiie  statement. 
In  prosecutions  for  a  rape,  it  is  the  common  practice,  and  is  strict-  indictment  for 
ly  regular,  to   inquire  whether  the  woman   made  a  complaint  a-  ""''P^- 
gainst  the  prisoner,  recently   after  the   injury;  (n)    but  the  particu- 
lars of  the   complaint,    stated  by  her   on  the  former  occasion,  are 
clearly  not  admissible  as   evidence  of  the  truth  of  her  statement. 
That  statement   having  been   made  in  the  absence  of  the  prisoner, 
cannot  be  used  as  evidence  against  him;  nor  can  it  be  admitted  as 
evidence  in  confirmation  of  her  statement  at  the  trial.  (3) 

(1)  6  East,  188,  198.  444.  R.  v   Clarke,    2  Starkie,  N.    P.  C. 

(2)  6  East,  195,  197,  198.  242 

(3)  Brazier's    case,    1    East,   P.   C. 


(ti)  See  Note  448,  p.  5S7. 

Vol.  I.  30 


234 


Hearsay  not  Evidence, 


[Ch.  7. 


Part  of  ret 

gesta. 


Principle  of 
rule. 


Exceptions. 


In  an  action  for  criminal  conversation,  where  the  defence  was, 
that  the  plaintiff  had  connived  at  his  wife's  elopement,  evidence 
was  received,  on  the  part  of  the  plaintiff,  of  the  wife's  declarations 
as  to  her  intention  and  purpose  in  going;  (1)  for  the  question  in  ef- 
fect was,  whether  the  husband  knew  that  she  was  about  to  elope, 
or  whether  he  believed  that  her  intention  was  as  she  represent- 
ed, (o) 

What  a  third  person  has  said  or  written  is  admissible,  in  many 
cases,  as  amounting  to  an  act  done  by  him,  or  as  showing  his 
knowledge,  or  as  evidence  of  his  conduct.  If,  for  instance,  it  is 
material  to  inquire,  whether  a  certain  person  gave  a  particular  or- 
der on  a  certain  subject,  what  he  has  said  or  written  may  be  evi- 
dence of  the  order;  (p)  or  where  it  is  material  to  inquire,  whether 
a  certain  fact,  be  it  true  or  false,  has  come  to  the  knowlccl  ro  of  a 
third  person,  what  he  has  said  or  written  may  as  clearly  bl.ovv  his 
knowledge,  as  what  he  has  done.  Where  it  is  relevant  and  mate- 
rial to  inquire  into  the  conduct  of  rioters,  what  has  been  said  by  any 
of  the  party  in  the  act  of  rioting  must  manifestly  be  admissible  in 
evidence,  as  showing  their  design  and  intention,  {q)  On  a  charge 
of  larceny,  where  the  proof  against  the  prisoner  is,  that  the  stolen 
properly  was  found  in  his  possession,  it  wouKl  be  competent  to 
show,  on  behalf  of  the  prisoner,  and  a  third  person  Icfi  the  proper- 
ly in  his  care,  saying  that  he  would  call  for  it  again  afterwards; 
for  it  is  material,  in  such  a  case,  to  inquire,  rnder  what  circum- 
stances the  prisoner  first  had  possession  of  the  property.  And  a  va- 
riety of  other  instances  might  be  mentioned  of  a  similar  nature,  (r) 

There  are  certain  exceptions  to  the  general  rule  on  the  subject 
of  hearsay,  which  are  perhaps  as  ancient  as  the  rule  itself,  and  have 
been  allowed,  either  because  the  inconvenience  and  danger,  com- 
monly attending  such  evidence,  are  not  likely  to  occur  in  the  ex- 
cepted cases,  or  because  greater  inconvenience  would  result  from 
its  exclusion  than  from  its  admission. 

The  exceptions  are  here  considered,  in  the  following  order. 
First,  as  to  dying  declarations.     Secondly,  as  to  hearsay  in  ques- 

(1)  Iloare  V.  Allen,  3  Esp.  N.  P.  C.  motion  for  a  new  trial,  were  of  opinion, 
276,  before  Ld.  Kenyon  on  second  trial,  that  this  evidence  ouglit  to  be  admitted, 
who  said,  that  some  of  the  judges,  op  the     And  seo  6  East,  193,  by  Ld.  Eilenborough. 


(o)  See  Note  449,  p.  5S7.    {^)  See  Note  450,  p.  588-  (5)  See  Note  451,  p.  583. 
(r)  See  Note  452,  p.  589. 


Sect.  7. J  Hearsay  not  Evidence.  235 

tions  of  pedigree.     Thirdly,  as  to  hearsay  on  questions  of  public  Dying  Jeclara- 

right,  customs,  boundaries,  &c.     Fourthly,  as  to  ihe  admissibility  .* 

of  old  leases,  rent-rolls,  surveys,  &c.  Fifthly,  as  to  the  admissi- 
bility of  declarations  against  interest.  Sixthly,  as  to  the  admissi- 
bility of  rectors'  and  vicars'  books.  Seventhly,  and  lasily,  as  to 
the  admissibility  of  the  books  of  tradesmen. 

First,  as  tg  the  admissibility  of  dying  declarations. 

The  dying  declarations  of  a  person,   who   has  received  a  mortal  Dying  declara- 
injury,  that  is,  declarations  made  under  the  apprehension  of  death,  ^'°°"- 
are  constantly  admitted  in   criminal  prosecutions,  when  the  death 
of  the  deceased    is   the  subject  of  the  charge  against    the    prison- 
er. (!)     The  principle  of  this   exception   to   the  general    rule  is 
founded  partly  on  the  awful  situation  of  the  dying  person,  which  is  Prosec.  for 
considered  to  be  as  pov/erful  over  his  conscience  as  the  obligation  '""'■'^^■■• 
of  an  oath,  and    partly  on  a  supposed   absence   of  interest  on  the 
verge  of  the    next  world,   which  dispenses  with  the  necessity  of 
cross-examination. 

Before  such  declarations  can  be  admitted  in  evidence  against  a  Sense  of  dan- 
prisoner,  it  must  be  satisfactorily  proved,  that  the  deceased,  at  the  S^""* 
time  of  making  them,  was  conscious  of  his  danger,  and  had  given 
up  all  hope  of  recovery.  This  consciousness  of  approaching  death 
is  to  be  collected  either  from  the  circumstances  of  the  case,  (as, 
from  the  nature  of  the  wound  and  the  state  of  body,)  or  tVom  ex- 
pressions used  by  the  deceased.  (2)  And  it  has  been  decided  by 
all  the  Judges,  that  the  question,  whether  the  deceased  made  the 
declarations  under  the  apprehension  of  death,  is  a  question  for  the 
Judges,  not  for  the  jury  to  determine,  previous  to  their  admis- 
sion. (3)  (s) 

(1)  Lord  Mohan's  case,    12    Howell,  (2)   Woodcock's  case,  2    Leach,  Cr. 

St.  Tr.  966.     R.    v.    Reason  and  Tran-  C.  566.     Dingler's  case,  ib   633.  John's 

ter,  1    Str.    499.     6    St.    Tr   202—205,  case,  1  East,  PI.  Cr.    357. 

S.  C     16  Howell,    St.    Tr.  26.     Wood-  (3)   By  the  opinion  of  all  the  judges, 

cock's    case,     2    Leach,    Cr.    C      566.  in    John's    case,    I     East,    PI.    Cr.   357, 

Bambridge's    case,  9  St.  Tr.   161,  S.  C.  and    in    Welboroe's    case,    I     East,    PI. 

14   Howell's   St.    Tr.    417.     Tinkler's  Cr.  359.     In    Woodcock's  case,  which 

case,    1    East,    P.  C.    354.     The  same  was   before  the  two    last,    this   question 

rule    has   been  at  all    times   adopted    in  had    been   left   to    the  jury  by  Eyre,  C. 

Scotland  ;  see   Hume's   Commentaries,  B.,  1  East,  PI.  Cr.  360. 
▼ol.  2,  391. 


(*)  See  Note  455,  p.  606. 


236  Hearsay  not  Evidence.  [Ch.  7. 

Dying  declara-  TIic  declaration  of  a  subscribing  witness  to  a  bond,  who  in  his 
', dying  moments  begged  pardon  of  Heaven  for  having  been  con- 
Witness  to       cerned  in  foraiins;  the  bond,  was  admitted,  by  Mr.  Justice  Heath,  (I) 

bond  or  will.  =>     ^  '  .  ^  ,^,  .    ,  i        i 

as  evidence  of  the  forgery,  on  the  authority  of  Wright  on  the  de- 
mise of  Clymer  v.  Littler,  (2)  where  similar  evidence  of  a  dying 
confession,  by  a  subscribing  witness  to  a  will,  had  been  received 
by  Chief  Justice  Willes,  and  afterwards  approved  by  the  Court  of 
King's  Bench. 

With  the  exception  of  tins  case,  the  general  rule  respecting  the 
admissibility  of  dying  declarations  is,  that  they  are  admissible  on- 
ly in  criminal  prosecutions,  where  the  death  of  the  deceased  is  the 
Question  of     subject  of  the  charge  against  the  prisoner.     On  a  question  of  pedi- 
pcdigree  gree,  in  an  action  of  ejectment,  it  has  been  lately  determined,  that 

the  dying  declarations  of  a  person,  as  to  the  relationship  between 
the  lessor  of  the  plaintiff  and  the  person  last  seised  of  the  premises 
in  question,  (the  deceased  not  being  himself  a  relation,  nor  in  any 
manner  connected  v^ith  the  parties,)  cannot  be  received  in  evi- 
dence. (3) 

After  attain-  '^^^^  declarations  of  a  criminal  at  the  lime  of  his  execution,  can- 

cer, not  be  received  on  the  trial  of  an  accomplice;  for,  after  attainder, 

he  could  not  have  been  sworn  as  a  witness;  (4)  {t)  and,  independ- 
ently of  this  objection,  this  would  not  be  admissible,  on  the  gene- 
ral principle. 

Not  evidence         The  dying  declarations   of  a   prosecutor,  in  an  indictment  for 
in  other  prose-  penury,  cannot  be  used   in  showing  cause    against  a  motion  for 

cutions.  .,,N  111  1  1  1  -J 

a  new  trial :  (5)  nor  could  they  have  been  used  as  evidence  at 
the  trial.  On  a  prosecution  for  administering  drugs  to  a  wo- 
man pregnant,  but  not  quick  with  child,  with  intent  to  procure 
abortion,  the  dying  declarations    of   the  woman  have  been  held 

(1)  Cited  by  Lord  Ellenborough,  in  (4)  Drummond'a  case,  1  Leach,  Cr. 
Aveson  v.  Lord  Kinnaird,    6   East,  195.     C  378  ;  1    East,    Pi.    Cr.    353,    S.    C. 

(2)  3  Burr.  1244,  1255.  1  Blac.  In  the  earlier  state  trials,  the  exami- 
Rep.  346,  S.  C.  See  4  Barn.  &  Aid.  nation  of  convicts  were  not  unfre- 
44_  quently  used    in    evidence    against    per- 

(3)  Doe   dem.    Sutton   v.    Ridgway,     sons  charged  with  the  same  offence. 

4  Barn.  &  Aid.  53.  (5)  R.    v.   Mead,    2    Barn.    &  Cress. 

605. 


(0  See   Note  454,  p.  609. 


Sect.    7.]  Hearsay    not    Evidence.  237 

not  to  be  admissible.  (1)      So,  also,  in  trials  for  robbery,  the  dying  Dying  declara- 
declarations  of  the  party  robbed.  (2)(tt)  '""^" 

Dying  declarations  have  been  admitted  in  evidence,  although  it  q^enrwrilteT 
appeared  that  the  deceased  made  a  subsequent  statement,  which  declarations, 
had  been  taken  in  writing  before  a  magistrate,  but  the  written  ex- 
amination was  not  ready  to  be  produced  at  the  trial.  This  point 
was  much  discussed  on  the  trial  of  Reason  and  Tranter,  under  the 
following  circumstance:  (3) — The  deceased  stated  the  particulars 
of  the  injury,  which  occasioned  his  death,  at  three  several  times 
in  the  course  of  the  same  day,  with  an  interval  of  about  an  hour 
between  each:  the  first  and  last  account  had  not  been  written; 
the  second  was  reduced  into  writing,  in  the  presence  of  a  magis- 
trate, by  the  same  person  to  whom  the  former  account  had  been 
given;  this  written  statement  was  retained  by  the  magistrate,  and 
as  he  had  removed  to  a  distant  part  of  the  country,  and  it  was  not 
known  to  what  place,  the  original  was  not  produced,  and  an  ex- 
amined copy  was  rejected.  An  argument  then  ensued  with  re- 
spect to  the  admissibility  of  the  first  statement  of  the  deceased. 
The  Chief  Justice  (Sir  John  Pratt)  was  of  opinion,  that  evidence 
of  the  first  and  third  statement  ought  not  to  be  received,  consider- 
ing all  three  as  statements  to  the  same  effect,  and  forming  one  en- 
tire narrative,  of  which  the  written  examination  was  the  best  proof. 
But  the  other  Judges  (4)  were  of  a  different  opinion;  they  held, 
that  the  three  accounts  given  by  the  deceased  were  distinct  facts, 
and  that  there  was  no  reason  to  exclude  the  evidence  as  to  the 
first  and  third  declaration,  because  the  prosecutor  was  disabled 
from  giving  an  account  of  the  second.  The  witness  was  there- 
fore directed  to  repeat  his  evidence,  laying  the  examination  before 
the  justices  out  of  the  case;  and  the  first,  as  well  as  the  third 
statement  was  admitted,  {v) 

(1)  By  Bayley,  J.  in  R.  v.  Hutchin-  one  of  the  counsel  for  the  prosecution, 
son,  2  Barn.   &  Cress.  608,  n.   (a).  From  the  report  in  the    State    Trials,    it 

(2)  By  Mr.  Justice  Bayley  on  the  would  appear,  that  the  Chief  Justice  and 
northern  Spring  circuit,  1822.  And  by  Mr.  Justice  Powis  were  against  receiving 
Best,  C.  J.  on  the  midland  Spring  cir-  the  evidence;  and  Mr.  Justice  V.yxe  and 
cuit,  1822.  Mr.  Justice    Fortescue   for    receiving  it. 

(3)  6  St.  Tr.  202— 205,  S.  C.  16  The  evidence,  however,  according  to  that 
Howell's  St.  Tr.  31.     1  Str.  499,  S.    C.  report,  was  at  last  received. 

(4)  1   Str.    500.     The   reporter   was 

(w)  See  Note  455,  p.  610.     (v)  See  Note  459,  p.  611. 


238 


Hearsay  not  Evidence, 


[Ch.  7. 


fn  case  ot  As  llie  declarations  of  a  dying  man  are  admitted,  on  a  supposi- 

^^  '°'^^^"          tion  that,  in  his  awful  situation   on  the   confines  of  a    future  world, 
he  had  no  motives  to  misrepresent,  but,  on  the  contrary,  the  strong- 
,  est  motives  to  speak  without  disguise  and   without  malice,    it  ne- 

cessarily follows,  that  the  party,  against  vvhom  they  are  produced 
in  evidence,  may  enter  into  the  particulars  of  his  state  of  mind  and 
Characterof  of  his  behaviour  in  his  last  moments:  or  may  be  allowed  to  show, 
that  the  deceased  was  not  of  such  a  character,  as  was  likely  to  be 
impressed  by  a  religious  sense  of  his  approaching  dissolution,  (w) 

On  question  of      Secondly,  with  regard  to  hearsay  on  questions  of  pedigree. 

Pedigree. 

On  inquiring  into  the  truth  of  facts  which  happened  a  long  time 
ago,  the  Courts  have  varied  from  the  strict  rules  of  evidence  appli- 
cable to  modern  facts  of  the  same  description,  on  account  of  the 
great  difficulty  of  proving  those  reniote  facts  in  the  ordinary  man- 
ner by  living  witnesses.  (1)  On  this  principle,  hearsay  and  reputa- 
tion (which  latter  is  the  hearsay  of  those  who  may  be  supposed  to 
have  known  the  fact,  handed  down  from  one  to  another)  have 
Relationship,  been  admitted  as  evidence  in  cases  of  pedigree.  (I)  (x)  Thus,  dec- 
larations of  deceased  members  of  a  family  are  admissible  evidence 
to  prove  relationship:  as,  who  was  a  person's  grand-fttther,  or 
whom  he  married,  or  how  many  children  he  had,  or  as  to  the  time 
of  a  marriage  or  of  the  birth  of  a  child,  and  the  like,  of  which  it 
cannot  be  reasonably  presumed,  that  better  evidence  is  to  be  pro- 
cured. In  ancient  times,  while  the  feudal  system  prevailed,  great 
facilities  of  establishing  descents  were  afforded  by  means  of  inqui- 
sition post  mortem.  The  heads  of  families,  upon  these  occasions, 
made  solemn  declarations,  which  were  preserved  as  niatter  of  rec- 
ord. (2)  But,  these  having  now  grown  into  disuse,  it  is  often 
extremely  difficult  to  prove  a  pedigree;  and  recourse  must  be 
had,  from  necessity,  to  the  best  evidence  that  the  nature  of  the 
subject  will  admit.  In  a  late  case,  proof  by  one  of  the  family, 
that  a   particular  person  had    many   years  before  gone  abroad, 

(1)  By  Le   Blanc,  J.    in   Hingham  v.  the  opinions  of  the  Judges  in  the  Berke- 

Ridgway,    10   East,    120.     And  see  the  ley    peerage  case,  4  Cainpb.    404 — 421. 

Lord  Chancellor's  judgment  in  the   case  Bull.  N.  P  295. 
of  Vowels  V.  Young,  13    Ves     143;  and         (2)  13  Ves.  145.     Bull.  N.  P.  294. 


Marriage 
Birth. 


Death. 


(w)  See  Note  457,  p.  611.     (a)  See  Note  468,  p.  612. 


Sect.  7.]  Hearsay  not  Evidence.  239 

and  was  supposed  to  have  died  there,  (y)  and  that  the  witness  had  In  case  of 

not  heard   in  the  family  of  his  having  married,  (z)  was  considered  ^^  '°      

by  the  Court  of  King's  Bench  good /jnma/acie  evidence  of  the  per- 
son's death  without  lawful  issue.  (1) 

It  is  not,  however,  every  statement  or  tradition  that  can  be  ad- 
mitted in  evidence,  (a)  "  The  tradition,"  said  Lord  Eldon,  in 
the  case  of  Whitlocke  v.  Baker,  (2)  "  must  be  from  persons  hav- 
ing such  a  connection  with  the  party  to  whom  it  relates,  that  it  is 
natural  and  likely  from  their  domestic  habits  and  connections,  that 
they  are  speaking  the  truth,  and  that  they  could  not  be  mistaken. 
Declarations  in  the  family,  {b)  descriptions  in  wills,  descriptions  wills. 
upon  monuments,  in  Bibles  (c)  and  registry-books,  {d)  are  all  ad-  Monuments, 
niitted,  upon  the  principle  that  they  are  the  natural  effusions  of  a 
party,  who  must  know  the  truth,  and  who  speaks  upon  an  occa- 
sion, when  his  mind  stands  in  an  even  position  without  any  temp- 
tation to  exceed  or  fall  short  of  the  truth. 

Descriptions  in  family  Bibles  have  been  mentioned  only  by  way  Family  books, 
of  example.      The  admissibility  of  such  entries,  it  is  scarcely  neces-        • 
sary  to  observe,  can  in  no   degree  depend   upon  the  circumstance 
of  their  being  inserted  in  the  family  Bible,  though   on  that  account 
the  statement  may  be  entitled  to  greater  consideration.      A  memo- 
randum inserted   in  any  other  book  by  one  of  the  fan.ily,  may  be 
given  in  evidence.      So,  a  will  by  an  ancestor  is  evidence  on  a  ques-  '^'''• 
lion  of  pedigree,  (though   it  be  found  cancelled,  and  not  known  to 
Ijave  been  proved  or  acted  upon,)  if  it  appears  to  have  been  treated 
as  a  paper  relating  to  the  faniHy.  (J)  And  recitals  in  family  deeds,  (e)  Deeds, 
monumental  inscriptions,  engraviugs  on   rings,  old  pedigrees  hung  g^"  '     °  * 
up  in  a  family  mansion,  and   the   like,  (in  which  it   is  improbable 
that  a  description  would  be  suffered  to  continue,  if  erroneous,)  are 
all  of  them  admissible  upon  the  same  principle.  (4) 

Declarations  made  by  a  deceased  husband,  as  to  the  legitimacy  Whuse  state- 
of  his  wife,  are  evidence,  though   he   was   not  related  to  her   by 

(1)  Doe    dem.   Banning    v.   Griffin,         (3)  Doe    dem.     Johnson      v.     Lord 
15  East,    293.      Doe   dem.    George   v.     Pembroke,  11  East,  505. 

Jesgon,  6  East,  80.  (4)   13  Ves.  144.      Bull.  N.    P.  233. 

(2)  13  Vcs.  514.     Edwards  v.   Har-    Cowp.  5H-     10  East,  120. 
vey,  I  Cooper,  Ch.  Rep.  SD. 

(y)  See  Note  459,  p.  613.  (z)  See  Note  460,  p.  615-  (a)  See  Note  461,  p.  615. 
(6)  See  Note  461,  b.  615.  (c)  See  Note  463,  p.  615.  (<i)  See  Note  464,  p.  616. 
(e)  See  Note  465,  p.  616. 


240  Hearsay  not  Evidence.  [Ch.  7. 

In  case  of        blood;  for  the  liusband   must  be  supposed   to   have  more   intimate 

pedigree. knowledge  on   that  subject,  than  a   distant   relation,  (1)      But  the 

opinion  of  deceased  neighbors,  or  of  servants,  or  of  mere  acquaint- 
ances, not  connected  with  the  family,  are  not  evidence  on  a  ques- 
tion of  pedigree;  (2)  nor  is  the  hearsay  of  a  relative  to  be  admitted, 
when  the  relative  himself  can  be  produced.  (3)  (/) 

f\r^^.  „„=  ; ,        The  declarations  of  a  deceased  relative  are  admissible,  notwith- 
Oi  persons  m  ' 

puri  jure.  standing  that,  if  he  were  alive,  he  would  stand  in  puri  jure,  with 
the  party,  on  whose  behalf  such  evidence  is  tendered,  and  have 
the  same  right  to  recover.  (4)  {g)  In  a  case  of  title  to  a  peerage 
before  the  House  of  Lords,  a  widow  was  allowed  to  prove  the  dec- 
larations of  her  deceased  husband  in  support  of  her  son's  title, 
though  the  husband,  if  living,  would  have  had  the  right,  which 
the  declarations  went  to  establish;  and  this  has  been  followed  ever 
since.  Such  observations  are  admissible,  though  subject  to  obser- 
vation. (5) 

Time  of  birth.  On  a  question,  whether  a  testator  at  the  time  of  making  his  will 
was  of  full  age,  a  written  memorandum  by  his  deceased  father, 
stating  the  time  of  his  birth,  has  been  admitted  to  be  good  evi- 
dence. (6)  Here  the  controversy  was  not,  as  in  a  question  of  pedi- 
gree, from  what  parents  he  derived  his  birth,  but  at  what  precise 
time  an  undisputed  birth  had  happened.  Still,  however,  the  ob- 
servation, before  made,  applies  to  this  sort  of  evidence,  namely,  that 
the  father  had  peculiar  means  of  knowing  the  fact  in  dispute  with- 
out any  interest  to  misrepresent  it,  and  the  fact  itself  was  not  a 
matter  of  notoriety,  but  necessarily  lying  within  the  knowledge  of 
a  few  individuals  of  the  family,  (h)      So,  on  a  question  of  legitima- 

Legitimacy.  cy,  the  declarations  of  deceased  persons,  supposed  to  have  been 
married  (who  might  themselves  be  examined,  if  alive,)  are  admis- 
sible to  disprove  the  fact  of  marriage.  (7)  (i) 

(1)  Vowels  V.  Young,  13  Ves.   148.         (4)  Doe  dem.    Tilman   v.    Tarver,  1 
Doe  denn.   Northey  v.  Harvey,  1  Ry.  &     Ry.  &  Mo.  141. 

Mo.  297.  (5)  By  Lord  Tenterden,  C  J.,  1  Ry. 

(2)  13  Ves.  147,  514.     IS  Ves.  443,     &  Mo.  142. 

446.     3  T.  R.  723.     1    Maule  &  Selw.         (6)  Herbert   v.    Tuckal.   Tr.  at   bar, 

689.     14   East,  330.     Johnson  v.   Law-  Sir  T.    Raym.    84,   cited    in   Brune   v. 

son,  2  Bing.  86.  Rawlins,    7    East,    299;    and     see     10 

(3)  Pendrel    v.    Pendrel,  2   Str.  924.  East,  120. 

Bull.  N.  P.  113.  Harrison  V.  Blades,  (7)  R.  v.  Bramley,  6  Tr.  R.  330. 
3  Camp.  457.  May  v.    May,  1762,   Tr.    at   bar,   Bull. 

N.P.  112, 


(j  )  See  Note  466,  p.  617.     (g)  See  N»le  467,  p.  621.     (A)  See  Note  468,  p.  621. 
(t)  See  Note  469,  p.  622. 


Sect.  7.]  Heccsai/  not  Evidence.  2-il 

Frotn  analogy  to  the   case   iust  ineiiiioiied    (in  which   the  decla-  Declarations 

.        ,  .  ,  ^    ,        .  f    .       post  litem 

rations  of  a  parent  liave  been  received  as  evidence  of  the  tune  of  the  motam. 

child's  birth,)  tlie  declaration  or  written  meaiorandum  of  a  deceas-  Time  of  birth 
ed   surgeon,  respecting  the  time  of  a  birth  at  which   he  attended, 
appears  to  be  evidence,  as  having  been  made  on  a  matter  peculiar- 
ly within  his  knowledge.  (1)  (j) 

The  declarations  of  a  deceased  parent,  though  they  are  evidence  pi^cg  of  birth, 
of  the  time  of  a  child's  birth,  will  not  be  admitted  as  evidence  of 
the  place  of  the  birth.  (2)  "  The  point  in  dispute,"  said  Lord  Ellen- 
borough,  in  a  case  where  tiie  admissibility  of  such  evidence  was 
discussed,  "  turns  on  a  single  fact  involving  only  a  question  of  lo- 
cality, and,  therefore,  not  falling  within  the  principle  of  the  rules 
applicable  to  cases  of  pedigree."  (&) 

Nor  can  the  declarations  of  a  father  or  mother  be  received,  after  Want  of  ac- 
their  deaths,  to  prove  the  want  of  access,  so  as  to  bastardize  a  child 
during  the  marriage  ;  for  they  could  not  be  examined  to  that  fact, 
if  alive;  (3)  and,  even  if  that  objection  were  removed,  still  the  case 
would  not  come  within  the  principle  on  which  such  hearsay  evi- 
dence can  be  made  an  exception  to  the  general  rule;  as  want  of 
access,  (4)  implying  the  continued  separation  of  the  parties,  must  be 
notorious  to  the  whole  neighborhood,  where  they  have  resided,  and 
is,  therefore,  capable  of  more  satisfactory  proof.  [1) 

The  declaration  of  a  deceased  person,  as  to  having  been  reliev-  Relief,  hiring, 
ed  by  a  parish,  (5)  or  as  to   having  been  hired  for  a  year,  (6)  are 
manifestly  not  any   evidence  of  those    facts,  on  an  appeal  against 
an  order  of  removal,  (m) 

The  declarations  of  a  deceased  member  of  the  family,  on  a  ques-  Declarations 
tion  of  pedigree,  are  not  to  be  admitted,  unless,  as  was  before  men-  ^oi^^^"^ 
tioned,  they  have  been  made  under  circun)stances,  when  the  nar- 

(1)  See  10  East,   120,   and  Vin.    Ab.     fe,  8  East,    203.     R.  v.    Ken,    II   East, 
Ev.  T.  b.  91.  133. 

(2)  R.  V.  Erith,  S  East,  542.  (4)  Bull.  N.  P.    113. 

(3)  R.    V.     Reading,     Rep.     temp.  (5)  R.  v.  Chadderton,  2  East,  29. 
Hard.  79.     Stapleton  v.    Stapleton,   ib.  (6)  R.  v.  Neuneham  Courtney,  1  East, 
277.      Bull.  N.    P.     113,   S.    C.     Ste-  373.     R.  v.  Ferry  Frislone,  2  East,  55. 
vans  V.  jMoss,  Cowp.  592.     R.    v.   Luf-  R.  v.  Aberwilly,  2  East.  63. 


(j)  See  Note  470,  p.  623.  {k)  See  Note  471,  p.  624.    (Z)  See  Note  472,  p.  624. 
(m)  See  Note  473,  p.  625. 

Vol.  I.  31 


242  Hearsay  not  Evidence.  [C 


1.  /. 


Declarations     rative  may  be  supposed  to  be  witbout   interest  and  vviibout   bias. 

post  litem  •'  ^^  ... 

motam-  If  tbey  were   made  on  a   subject  in  dis|)utc,   after  the  commencc- 

ment  of  a  suit,  or  after  a  controversy  preparatory  to  one — or  if 
made  respecting  some  matter,  on  wbicb  a  controversy  existed  at 
the  time — tbey  ought  not  to  be  received  in  evidence,  on  account 
of  the  probability,  that  they  were  partially  drawn  from  the  deceas- 
ed, or,  perhaps,  intended  by  him,  to  serve  one  of  the  contending 
parties.  (J) 

There  has  been  s^me  difference  of  o|)inion  on  this  subject.  In 
a  case  reported  in  Viner's  Abridgment,  (2)  Ch.  B.  Reynolds  re- 
fused to  admit  declarations,  which  had  been  made  at  a  time  when 
the  point  had  become  the  subject  of  controversy.  On  the  other  hand, 
such  evidence  was  received  by  Lord  Camden;  (3)  and  Lord  Mans- 
. field,  in  the  case  of  Stevens  v.  Moss,  (4)  was  of  opinion,  that  an 
answer*  by  a  deceased  mother  to  a  bill  filed  against  her,  staling 
the  time  of  a  child's  birth,  might  be  admitted  as  evidence  on  the 
footing  of  a  declaration.  On  the  trial  of  the  cause,  Mr.  Baron 
Eyre  rejected  this  answer,  together  with  the  general  declarations 
of  the  father  and  mother;  in  consequence  of  which,  an  applica- 
tion was  made  to  the  Court  of  King's  Bench  for  a  new  trial.  Lord 
Mansfield,  on  that  occasion,  considered  the  rejection  either  of  the 
general  declarations,  or  of  the  answer,  to  be  a  sufficient  ground  for 
a  new  trial:  but  he  adverted  more  particularly  to  the  former:  and 
it  does  not  appear  from  the  report,  that  he  laid  any  great  stress  on 
the  rejection  of  the  answer.     Mr.  Justice    Aston   concurred  with 

(1)  Cases  infra.  rence  J.  in    the  Berkeley   peerage    case; 

(2)  Dev.  Sp.  Ass.  1731,  Vin    Ab  Ev.  and    see    Nichols    v.    Parker,    14    East, 
[T.  b.  91.]  331,  n. 

(3)  Havward    v.  Firmion.    Sitt.   after         (4)   Covvp.  5.01. 
Trin.   Term,    1766;     cited     by     Law- 


*  The  answer  is  described  by  the  leporter  of  this  rase  as  an  answer  in  Chance- 
ry. It  appears  from  an  it;quiry,  which  was  n'ade  in  the  case  of  the  Berkeley  peer- 
age, that  proceedings  had  lieen  inslituled  in  the  Court  of  Chcsnccry,  and  that  after- 
wards a  bill  was  filed  in  the  Excheqiu-r  by  the  younger  son.  claiming  as  a  legiti- 
mate child,  against  the  mother,  who  was  adiiiiiiistratiix  of  her  deceased  husband. 
The  mother  in  her  answer  averred,  that  the  complainant  was  born  before  marriage 
and  illegitimate.  Now,  as  she  was  entitled  as  adnjinistratrix  to  a  distributive  share 
of  the  husband's  effects,  and  was  therefore  interested  to  defeat  the  right  of  any  other 
persons,  who  might  claim  a  part  under  the  di.sftibiition,  her  answer  most  clearly 
ought  not  to  have  been  admitted.  This  objection,  however,  was  not  adverted  to; 
nor  does  it  seem  to  have  occurred,  that  the  statement  in  the  answer  wa.s  inadmissi- 
ble, as  having  been  made  after  the  commencement  of  a  suit. 


Sect.  7.]  Hearsay  not  Evidence.  243 

Lord  Mansfield  in  opinion,  that  the  general  declarations  ought  to  Declarationa 

...  ,  .        post  litem 

have  been  admitted,  but  delivered  no  opmion  on   the  other  point,  moiam. 


Thus,  the  authorities  on  this  subject  appear  to   have  been,  at  one 

time,  nearly  evenly  balanced. 

The  rule  on  this  subject  appears  to  be  now  settled  by  the  opin-  Berkeley 
ions  delivered  by  the  judges  in  the'case  of  the  Berkeley  peerage  P®^"^*^®  *^"°' 
claim.  (1)  A  question  was,  on  that  occasion,  proposed  to  the  Judg- 
es, in  the  following  terms  :  (2)  "  Upon  the  trial  of  an  ejectment 
respecting  Black  Acre  between  A.  and  B.  (in  which  it  v.'as  neces- 
sary for  A.  to  prove  that  he  was  the  legitimate  son  of  J.  S.,)  A., 
after  proving  by  other  evidence  that  J.  S.  was  his  reputed  father, 
offered  to  give  in  evidence  a  deposition  made  by  J.  S.  in  a  cause  in 
Chancery,  instituted  by  A.  against  C.  D.  in  order  to  perpetuate 
testimony  to  the  alleged  fact  (disputed  by  C.  D.,)  that  he  was  the 
legitimate  son  of  J.  S.,  in  which  character  he  claimed  an  estate  in 
remainder  in  White  Acre,  which  was  also  claimed  in  remainder  by 
C.  D.  B.,  the  defendant,  in  the  ejectment,  did  not  claim  Black 
Acre  under  either  A.  or  C  D.,  the  plaintiff  and  defendant  in  the 
Chancery  suit.  According  to  law,  could  the  deposition  of  J.  S.  be 
received  in  evidence  upon  the  trial  of  such  ejectm'ent  against  B.,  as 
evidence  of  declarations  of  J.  S.,  the  alleged  father,  in  matters  of 
pedigree  .'*"  The  Judges  who  were  present  afterwards  stated  their 
opinions  at  length,  and  with  only  one  dissentient  voice,  agreed  in 
considering  the  deposition  of  J.  S.  to  be  inadmissible.  Mr.  Justice 
Lawrence  delivered  his  opinion  in  the  following  terms  :  (3)  "  The 
declarations  of  members  of  the  family,  in  matters  of  pedigree,  are 
generally  admitted  from  the  necessity  of  the  case;  but  the  admin- 
istration of  justice  would  be  perverted,  if  such  declarations  could  be 
admitted,  which  have  not  a  presumption  in  their  favor,  that  they 
are  consistent  with  truth.  Where  the  relator  had  no  interest  to 
serve,  and  there  is  no  ground  for  supposing  that  his  mind  stood  oth- 
erwise than  even  upon  the  subject  (which   may   be   fairly  inferred 

(1)  May  13,    1811,    RiS.    4   Campb.  (2)   May    2,     1811,    M.  S.tSee    also 

401,    S.    C.    See    also    the  case    of  the  Banltury    peerage   case,    2  Sefw.    N.  P. 

Banbury  peerage    claim,   1S09,  2  Selvv.  731 — 736;    and    infra,  part    2,     ch.     4, 

W.    P.    731.       1    Simon  and    Stewart's  s.  1. 

Rep.    163,    S.    C.      Doe   dern.   Tilii:an  (3)  4  Campb.  409. 
V,  Turner,  1  Ry.  &  Mo.  142. 


244  Hearsay  not  Evidence.  [Cli.  7. 

Declarationi     before  any  dispute  upon  it  has  arisen,)  vve  may  reasonably  suppose, 
Y.otam.  that  he  neither  stops  sliort,  nor  goes  beyond  the  hmits  of  truth,  in 

his  spontaneous  declarations  respecting  his  relations  and  the  state 
of  his  family,  'i'he  receiving  of  these  declarations,  therefore, 
though  made  without  the  sanction  of  an  oath,  and  without  any 
opportunity  of  cross-examination,  may  not  be  attended  with  such 
mischief  as  the  rejection  of  such  evidence,  which  in  matters  of  ped- 
igree would  often  be  the  rejection  of  all  the  evidence  that  could  be 
oftered.  But  mischievous  indeed  would  be  the  consequence  of 
receiving  an  ex  parte  statement  of  a  deceased  witness,  although 
upon  oath,  procured  by  the  party  who  would  take  advantage  of  it, 
and  delivered  under  that  bias  which  may  naturally  operate  on  the 
mind  in  the  course  of  a  controversy  upon  the  subject.  Notwith- 
standing what  is  said  in  the  case  of  Stevens  v.  Moss,  I  cannot  think 
that  Lord  Mansfield  would  have  held,  that  declarations  in  matters 
of  pedigree,  made  after  the  controversy  had  arisen,  ought  to  be  sub- 
mitted to  the  jury.  They  stand  precisely  on  the  same  footing  as 
declarations  on  questions  of  rights  of  way,  rights  of  common,  and 
other  matters  depending  upon  usage  ;  and  although  I  cannot  call 
to  mind  the  ruling  of  any  particular  Judge  upon  the  subject,  yet  I 
know  that  according  to  my  experience  of  the  practice  (an  experi- 
ence of  nearly  forty  years,)  whenever  a  witness  has  admitted,  that 
what  he  was  going  to  state  he  had  heard  after  the  beginning  of  a 
controversy,  his  testimony  has  been  uniformly  rejected.  If  the 
danger  of  fabrication  and  falsehood  be  a  reason  for  rejecting  such 
evidence  in  the  cases  of  prescription,  that  will  equally  apply  in  cases 
of  pedigree,  where  the  stake  is  generally  of  much  greater  value." 
Then,  after  referring  to  the  decided  cases,  the  learned  Judge  added, 
"  The  authorities  being  thus  balanced,  I  think  the  point  must  be 
considered  as  without  any  decision,  and  we  must  resort  to  principle 
and  the  uniform  practice,  which  has  obtained  in  questions  of  pre- 
scription. Hardships  may  arise  in  rejecting  declarations  made  be- 
tween the  commencement  of  the  suit  and  the  time  of  the  trial;  but 
such  hardships  are  not  confined  to  the  case  of  pedigree.  In  other 
cases,  if  witnesses  die  before  the  trial  of  the  cause,  the  party,  who 
relied  upon  their  testimony,  must  sustain  the  loss.  For  avoiding 
uncertainty  injudicial  proceedings,  general  rules  must  be  laid  down 
and  adhered  to,  without  regard  to  our  feelings  or  our  wishes  on 
particular  occasions.    Besides,  the  hardship  may  generally  be  avoid- 


Sect.  7.]  Hearsay  not  Evidence.  '2i5 

ed  bv  a  bill  to  perpetuate  testimony.     Altliou2:Ii   the  exclusion   of  Declarations 

•'  "^     '  .  post  litem 

declarations  made  in  the  course  of  the  controversy  may   prejudice  moiam. 

some  individuals,  it  is  better  to  submit  to  this  inconvenience  than 
expose  courts  of  justice  to  the  frauds  which  would  be  practised  up- 
on them  if  a  contrary  rule  were  to  prevail.  That  this  is  not  an 
imaginary  apprehension,  will  appear  from  what  happened  in  the 
Douglas  and  Anglesea  causes;  in  the  first  of  which,  fabricated  let- 
ters were  given  in  evidence;  and  in  the  second,  false  declarations. 
Notwithstanding  the  danger  of  incurring  the  penalties  of  the 
crime  of  perjury,  there  is  scarce  an  assize  or  sittings  in  which  wit- 
nesses are  not  produced,  who  swear  in  direct  contradiction,  the 
one  to  the  other;  and  it  may  be  feared,  that  persons,  who  have  as 
little  regard  to  truth,  may  be  induced  to  make  false  declarations, 
when  they  run  no  risk  of  punishment  in  this  world,  as  no  use  can 
be  made  of  their  evidence  till  after  their  death.  We  know  that 
passion,  prejudice,  party,  and  even  good-will,  tempt  many,  who 
preserve  a  fair  character  with  the  world,  to  deviate  from  the  truth, 
in  the  lax'ity  of  conversation.  Can  it  be  presumed  that  a  man 
stands  perfectly  indifferent,  upon  an  existing  dispute  respecting  his 
kindred.''  His  declarations  ]305f  Zi7em  mo<a?n,  not  merely  after  the 
commencement  of  the  law-suit,  but  after  the  dispute  has  arisen  (that 
is  the  primary  meaning  of  the  word  lis,)  are  evidently  more  likely 
to  mislead  the  jury,  than  to  direct  them  to  a  right  conclusion,  and, 
therefore,  ought  not  to  be  received  in  evidence.  I  am  likewise  of 
opinion,  that  no  deposition  can  be  received  in  evidence  as  a  decla- 
ration, to  prove  a  fact  which  it  was  the  object  of  that  deposition  to 
establish.  A  deposition  is  the  answer  of  the  witness  to  such  in- 
terrogatories as  it  is  thought  expedient  to  put  to  him,  to  establish 
certain  facts  which  the  plaintiff  alleges,  and  on  which  the  case 
depends.  Consequently,  a  deposition  is  considered  a  partial  repre- 
sentation of  facts,  as  to  all  persons  who  have  no  opportunity  of 
bringing  out  the  whole  truth  by  cross-examination;  and  on  that 
account,  all  admit,  that,  against  a  stranger,  it  cannot  be  received 
in  evidence  as  a  deposition.  How  then  siiall  it  be  received  as  a  dec- 
laration.^ In  that  case,  the  circumstance  of  its  being  upon  oath 
cannot  be  regarded.  To  consider  ii  a  declaration  on  oath,  would 
be  to  receive  it  as  a  deposition.  As  a  declaration,  it  is  still  subject 
to  the  same  vice  and   infirmity,    of  being  an   answer   to   particular 


24G  Hearsay  not  Evidence.  [Cl».  7. 

Declarationa     questions    artfully     put,   vviih    an   interested   view,   by  one   party 

post  litem        behind  the  back  of  the  other.      All   the   objections,  on  which  it  is 
motam.  J  ' 

■ — • allowed  that  this   document   cannot   be  received   as  a   deposition, 

apply,  with  at  least  equal  strength,  to  receiving  it  as  a  decla- 
ration." 

Award.  In  a   later  case   also,  at  7iisi  prius^   where   the   question    was, 

whether  the  occupier  of  a  particular  farm  was  liable  to  the  repair 
of  a  public  road,  and  to  prove  the  affirmative,  an  award  was 
produced  (which  had  been  made  some  years  before,  when  the 
same  question  was  the  subject  of  dispute  between  a  former  oc- 
cupier, and  the  township  where  the  lands  were  situated,)  this  ev 
idence  was  rejected  as  inadmissible;  on  the  ground,  that  the 
account,  which  the  deceased  witnesses  might  have  given  to  the  arbi- 
trator on  that  occasion,  could  not  have  been  received,  as  the 
declarations  were  made  post  litem  motam,  and  that  the  opinion  of 
the  arbitrator,  formed  upon  such  testimony,  could  not  be  entitled  to 
more  credit.  (1) 

Custom  '^^^^  same  princi[)le    applies   equally  to   depositions  relating   to 

manorial  customs;  which  therefore  are  not  admissible  in  evi- 
dence, when  precisely  the  same  custom,  as  is  the  subject-matter 
of  the  existing  suit,  was  contested    in   the  former  suit,  in  which 

Deposiiionsin   t^e   depositions  were   made.     But   where  the  two   suits   are   not 

a  former  suit    ^pon  the  same  custom,  the  depositions,   taken  in  the   former  suit, 

upon  a  differ-       '  .  •        •  i     •  i 

ent  custom.       are  not  liable  to  objection,  as  bemg  made  post   litem  motam;  and, 

where  the  former  suit  is  very  ancient,  it  will  be  unnecessary  to 
prove  the  extrinsic  evidence,  that  the  witnesses,  who  made  the 
depositions,  were  in  the  situation  in  which  they  profess  to  stand, 
or  that  they  had  the  means  of  becoming  acquainted  with  the 
customs  of  the  manor.  A  question  of  this  kind  lately  occurred  in 
the  case  of  Freeman  v.  Phillipps;  (2)  where  depositions  in  an 
ancient  suit,  as  to  a  copyhold  custom,  were  adjudged  to  be  ad- 
Former  Buit.  missible.  The  former  suit  was  instituted  against  the  lord  of  a 
manor,  by  a  person  who  claimed  to  be  admitted  to  a  copyhold 
for  lives,  upon  a  custom  for  any  copyhold  tenant  for  life,  or  lives 
to  change  or  fill  up  his  lives,  paying  to  the   lord  a  reasonable  fine 

(1)  R.  V.  Cotton,  3  Campb.  444,   be-         (2)  4  Maule  &  Selw.  486. 
fore  Dampier,    J. 


Seel.  7.]  Hearsay  not  Evidence.  247 

to  he  set  up  by  the  lord  or  his  steward.     The  subsequent  suit  was  an  Dedaratlona 
action   by  a  copyholder  against  a   lord  of  the    same   manor,  and  ^°f,       "^ 
the  question  was,  whether  there  existed    in  the  manor  such   a 


custom,  as  liie  plaintiff  claimed,  in  respect  of  copyholds  granted 
for  two  lives,  that  the  surviving  life  should  renew,  paying  to  the 
lord  such  fine  as  should  be  set  by  the  homage  equal  to  two  years'*  im- 
proved value.  It  was  not  proved,  farther  than  by  the  record  itself, 
that  the  litigating  parties  in  the  former  suit  were  (as  they  claimed 
to  be)  lord  and  copyholder,  or  that  the  persons  making  the  deposi- 
tions were  such  as  they  represented  themselves  to  be  in  the  deposi- 
tions. These  depositions  were  offered  in  evidence  on  behalf  of  the 
defendant,  as  showing,  that,  at  the  time  of  the  former  suit  at  least, 
no  such  custom  as  the  present  was  ever  set  up,  but  that  the  cus- 
tom, which  was  applicable  to  all  copyholders  for  lives  (and,  there- 
fore, to  copyholders  for  two  lives,)  was,  that  the  copyholder  should 
renew  on  payment  of  a  fine  to  be  set  by  the  lord  or  steward, 
without  fuentioning  any  thing  of  the  intervention  of  the  homage 
or  jury,  and  that  such  intervention  was  not  an  ingredient  in  the 
custom.  The  objections  against  the  reading  of  the  depositions  Objection, 
were,  first,  that  the  former  suit  was  res  inter  alios  acta:  and,  sec- 
ondly, that  the  depositions  were  not  admissible  as  declarations, 
having  been  made  post  litem  motam.  But  the  Court  of  King's 
Bench  determined,  that  the  depositions  had  been  properly  admitted 
in  evidence. 

Willi  respect  to  the  first  objection.  Lord  Ellenborough  C.  J.  said, 
"Considering  these  depositions  as  made  in  a  suit,  which  may  now 
be  said  to  be  lost  in  remote  antiquity,  we  should  give  this  record 
but  little  effect,  if  we  did  not  attribute  to  it  verity  in  many  of  the 
particular  matters  which  it  contains,  such  as,  that  the  parties  liti- 
gant were  clothed  with  the  rights  in  which  they  profess  to  stand, 
and  were  agitating  the  claim  put  forward  on  the  record.  It  ap- 
pears, then,  that  in  1693  a  copyholder  of  this  manor,  or  a  person  j^re^^^^^'^^* 
claiming  at  least  to  be  a  copyholder,  was  engaged  in  a  suit  with 
the  lord,  and  in  the  course  of  that  suit  produced  persons,  who  ap- 
pear to  have  stood  in  pari  jure  or  eodem  jure,  and  who  made  their 
depositions  in  support  of  the  claim.  These  depositions  I  consider 
to  be  evidence,  as  being  made  by  persons  standing  in  pari  jure;  and 
so  they  have  been  considered  at  all  times.  They  furnish  evidence 
not  only  against  the  parties  making  them,  but  against  all  persons 


248  Htarsmj  not  Evidence,  [Ch.  7. 

On  question      Standing  in  tlie  same  relation."     And,  as  to  the  second  objection, 
or  custom^'"  ^ '  ^^''-  Justicc  Le  Blanc  said, — "One  answer  to  the  objection  (of  their 

bavins;  been  made  post  litem  molam)  is  this,  that,  treatins;  the  deno- 

Different  .  .  .  .  ' 

ousiom.  sitions  as  hearsay  evidence  only,  still  they  are  not  to  be  considered 

as  made  post  litem  motcnn,  because  the  same  thing  is  not  in  contro- 
versy now,  that  was  in  controversy  in  the  former  suit;  the  two 
customs,  which  gave  rise  to  the  two  suits,  are  different.  And  the 
strong  ground  of  observation,  which  arises  upon  these  depositions, 
is,  not  that  they  are  evidence  of  any  particular  thing,  which  the 
witnesses  have  affirmed,  but  that,  at  a  time  when  a  dispute  existed 
between  the  lord  and  his  copyholder  concerning  the  copyholder's 
right  to  renew  on  certain  terms,  it  was  never  insisted  upon  as  a 
term,  that  the  fine  should  be  assessed  by  the  jury.  I  do  not  see 
how,  in  this  point  of  view,  it  can  be  said,  that  this  was  not  evidence 
applicable  to  the  issue:  and  it  seems  also  to  me  to  stand  clear  of 
objection,  either  on  the  ground  of  its  being  a  declaration  made  af- 
ter the  commencement  of  a  suit  touching  the  matter  in  question, 
or  on  the  other  ground,  that  we  ought  to  look  for  evidence  aliunde 
to  make  it  admissible."  (n) 

Thirdly,  as  to  the  admissibility  of  hearsay  evidence  on  questions 
of  public  rights,  customs,  boundaries,  &c. 

publirnahN^"  I.  In  questions  concerning  public  rights,  common  reputation 
is  admitted  in  evidence.  Such  rights,  being  matters  of  public  no- 
toriety and  of  great  local  importance,  become  a  continual  sub- 
ject of  discussion  in  the  neighborhood,  where  all  have  the  same 
means  of  information  and  the  same  interest  to  ascertain  the 
claim.  (1)  If  a  question  should  be  raised,  whether  a  corporation 
has  a  prescriptive  right  to  collect  tolls  on  a  public  navigation,  it 
would  be  good  evidence  to  show,  that  deceased  persons  have 
been  heard  to  acknowledge  the  right,  and  to  declare  that  they 
had  been  so  informed  by  their  predecessors.  The  same  reason 
applies,  in  a  less  degree,  to  questions  respecting  general  customs, 
which  concern  parishes  or  manors,  or  the  inhabitants  of  towns 
and  other  places.  (2)      In  such   cases,  general   reputation  is  some 

(1)  Morewood     v.    Wood,    14   East,         (2)   14  East,  327. 
829.     See   Weeks  v.  Sparke,  1    Maule 
&  Selw.  679,  685. 


(n)  See  Note  474,  p.  625. 


Sect.  7]  Hearsay  not  Evidence.  249 

evidence  of  a  ridit  beyond   the   memory  of  living   witnesses,  and  On  question  of 
o  J  J  !D  public  right,  or 

ihns  tends  to  support  the  modern  usage,  (o)  custom. 

2.  In  questions  upon  a  boundary  between  parishes  or  manors,  (1)  bo^unja^ies,  ° 
or  on  a   customary  right,  (2)  (p)   or  on  parochial  or  manorial  cus-  customs,  &.c. 
toms,  (2)  declarations  made  by   deceased  persons,  who  from  their 
situation  had  the  means  of  knowledge,  and  no   interest   to  misrep- 
resent, are  admissible  in  evidence. 

Perambulations  are  evidence  of  the  extent  of  a  particular  parish  Perambula- 

'  '  tions. 

or  manor;  since  it  may  be  inferred,  that  those  who  perambulated 
believed  the  line  of  their  perambulation  to  be  the  boundary  of  the 
district,  and  such  acts  are  in  some  measure  an  exercise  of  the 
right.  (3)  Such  evidence  has  been  admitted  from  analogy  to  ca- 
ses of  public  rights,  in  which  it  is  clearly  established,  that  reputa- 
tion is  admissible,  (q) 

A  right  of  common  by  custom  is,  strictly  speaking,  a  private  Connmon. 
right  ;  but  it  is  also  a  general  right,  and  therefore  (so  far  as  re- 
gards the  admissibility  of  this  species  of  evidence)  has  been  con- 
sidered as  public,  because  it  affects  a  large  number  of  occupiers 
within  a  district.  But  it  is  to  be  observed,  the  evidence  is  to  be 
confined  to  what  such  old  persons  have  said,  as  were  in  a  situation 
to  know  what  the  rights  were:  and  before  a  customary  right  can 
be  proved  by  such  evidence,  a  foundation  ought  to  be  laid  by  show- 
ing an  exercise  of  the  right,  or  acts  of  enjoyment  within  the  period 
of  living  memory  ;  it  is  the  exercise  of  the  right  that  lets  in  the 
evidence  of  reputation.  (4)  Where,  indeed,  the  subject-matter  does 
not  admit  of  acts  of  enjoyment  or  the  exercise  of  a  right,  there  the 
opinion  of  the  place  is  of  itself  admissible  in  evidence;  as,  on  a 
question  of  parochialily,  proof  of  reputation,  unaccompanied  by 
evidence  of  acts  done,  is  clearly  admissible. 

(1)  Nichols  V.  Parker,  14  East,  331.  Parker,  ib.  331,  n.  And  see  Weeks 
1  Maule  &  Selw.  81.  v.  Sparko,    1  Maule  &  Selvv.    679,  6S4, 

(2)  Denn  v.  Spray,  1  T.  R.  466.  686.  Harvvood  v.  Sitns,  1  Wiglitw. 
Beebee  v.  Parker,  5  T.  R.  26,  31.  112.  Freeman  v.  Philllpps,  supra,  p. 
Chapman   v.    Smith,    3   Gwill.    854.     2  246. 

Ves.    512,    S.    C.     Doe    d.    AMason    v.  (3)    1  Maule  &  Selw.  687,  689. 

Sisson,    12    East,     62.       Morewood     v.  (4)    1  Maule  &    Selw.  689,  690.      12 

Wood,    14   East,    327,    n.     Nichols   v.     East,  65.     14  East,  330. 

(o)   See  Note  475,  p.  626.     (p)  See  Note  476,  p.  628.     (?)  See  Note  477,  p.  628. 

Vol.   1.  32 


250  Hearsay  not  Evidence.  [Ch.  7. 

On  question  of      Declarations  as  to  boundaries  or  customs,  &c.   made  post  litem 

public  right,  or  i         •         r         i  •  •it 

custom.  motam,  tliat   is,  alter  the  very  same   point  or  question  has  become 

the  subject   of  controversy,    are  not  admissible.  (1)      But,  unless 

Post  litem  mo-  ,i  i       i  j  i  i  •  . 

fam.  there  should  appear  to  be  a  controversy  as  to  the  same  precise  point, 

it  will  not  be   enough,   for  the   purpose  of  excluding   the   declara- 
tions of  deceased    persons,  to  show,   that  they  claimed    under  the 
same  custom.     This   kind   of   evidence  has  been   received,  on   a 
Modus.  question  of  parochial   modus,   though  the   deceased  was   a  parish- 

Declarations     io'ier,  and  occupier  of  lands;  (2)  so  also,  on  a  question  of  parochial 
of  occupiers,     or  manorial  boundary,    although  the  persons  who  had  been   heard 
to  speak  of  the  boundary  were  parishoners,   and  claimed  rights  of 
common  on  the  very  wastes  which  their  declarations  had  a  ten- 
dency to  enlarge.  (3) 

Although,   on  a  question   of  boundary  or  custom,  the  general 
opinion    of  the  place  is   evidence  of  the   general   right,    yet   the 
Tradition  of     tradition   of  a    particular  fact    (as,  that  turf  was  dug,    or  a   post 
particular  fact,  pyj  down  in  a   particular  spot,   &c.)   said   to  have  been  done   in 
the  exercise  of  that  right,  will  not  be  evidence.  (4)      For  the  fact, 
which  is  the   subject  of  tradition,   may  have   been  done  under  a 
licence  from  the  very  persons    against  whom,  or  against  whose 
representatives,  the  right  is  afterwards  claimed;  and,  in  general, 
single  facts  are    so  frequently    misrepresented,    or    misreporled, 
either  from  intention  or  from  ignorance,  and  the  various  circum- 
stances, which  have  accompanied  a  fact,  and   which  may   be  es- 
sentially  characteristic,  are  often  so  little  known,  or,   if  known, 
are   so  likely   to    pass   unobserved,    and   to    be  forgotten  in    the 
course  of  time,  that  no  credit  can  safely   be  given  to   such   a  tra- 
Modua.  dilion.     Thus,    on   a  question  of  parochial   modus,  evidence  that 

a  particular  person,  since  deceased,  paid  a  certain  sum  in  lieu 
of  tithes,  would  not  be  admissible;  but  if  the  witness  says,  he 
has  heard  from  old  inhabitants,  that  so  much  per  acre  was  al- 
ways paid  in  lieu  of  the  tithes,  or  that  it  had  always  been  the 
custom   to  make  such   payments,  that  will  be  good  evidence;  for 

(1)  11  Price,  180.  Vide  supra,  p.  (3)  Nichols  v.  Parker,  14  East,  331, 
245,  on  this  subject.  tried  before  Le  Blano,  J.  1S05. 

(2)  Harwood  v.  Sims,  I  Wightw.  (4)  3  T.  R.  709.  5  T.  R.  123.  14 
112.  Moaeley  V.  Davy,  11  Price,  162,  East,  330,  331.  1  Manie  &  Sclvv.  687. 
ISO.  Deade  v.  Hancock,  13  Price,  Chatfield  v.  Fryer,  1  Price,  253.  Gar- 
236.  nons  v.  Barnard,   1  Anstr.  298. 


Sect.  7.]  Hearsay  not  Evidence.  251 

it  docs  not  consist  of  hearsay  of  a  particular  fact,  but  comes  williiii  On  question 
I  I        1        ^       •  1  r  •  / .  \        A      1     •  .of  prescriptive 

the  general  rule  ol  evidence  oi  reputation.  (1)      And,  iii  questions  ri„ht. 

of  pedigree,  as  the  reputation  must  necessarily  proceed  on  particu-  r~: 

lar  facts,  such  as  marriages,  births,  and  the  like,  the  hearsay  of  the 

family  respecting  these   particular  facts,  from   the  necessity  of  the 

case,  is  not  excluded.  (2) 

With  respect  to  the  admissibility  of  common  reputation,  as  evi-  Hearsay  ns  to 
dence  of  prescriptive  rights  strictly  private,  there  has  been  consid-  ^ig^^ts?'^  '^^ 
erable  doubt.  In  one  of  the  latest  cases  on  this  subject,  (3)  where, 
on  a  motion  for  a  new  trial,  the  question  was,  whether  such  evi- 
dence ought  to  have  been  received,  as  evidence  of  a  prescriptive 
fight  of  digging  stones  on  a  waste,  the  Court  of  King's  Bench  was 
equally  divided.  A  book  of  authority  lays  it  down  broadly,  that 
"  in  questions  of  prescription,  it  is  allowable  to  give  hearsay  evi- 
dence, in  order  to  prove  general  reputation  ;  and  that,  therefore, 
where  the  issue  was  on  a  right  of  way  over  the  plaintiff's  close, 
the  defendants  were  admitted  to  give  evidence  of  a  conversation 
between  persons  not  interested,  then  dead,  wherein  the  right  to  the 
way  was  acknowledged."  (4)  But,  on  the  other  side,  there  are  Not  evidence, 
many  great  authorities  against  receiving  this  kind  of  evidence.  (5) 
And  there  appears  to  be  good  reason  for  the  distinction.  For  where 
individuals  claim  merely  a  private  right,  other  people  have  not  the 
same  means  of  knowing  it,  nor,  if  they  had,  would  they  have  the 
same  interest  to  examine  it.  How,  for  instance,  can  the  common 
belief  among  the  inhabitants  of  a  parish  supply  any  kind  of  infor- 
mation, on  a  question  of  right  of  way  claimed  by  an  individual  over 
a  particular  field  .''(6)    In  such  cases,  common  reputation  appears  to 

(1)  Harwood  v.  Sims,  1  Wightw.  also  Price  v.  Liulevvood,  3  Campb. 
112.     Adams  v.  Evans,  4  Price,  20.  288,  stated  infra. 

(2)  4  Campb.  416.  (5)   Lord    Kenyon    in    Reed  v.  Jacij- 

(3)  Morewood  v.  Wood,  14  East,  son,  I  East,  357.  Lord  Kenyon  and 
327.  Lord  Kenyon  C.  J.  and  Ash-  Ashhurst,  J.  in  Morewood  v.  Wood, 
hurst  J.  against  the  evidence;  Bui-  14  East,  329.  Lord  Kenyon  in  With- 
ler  J.  and  Grose  J.  for  it.  nell  v.  Garth:im,    1  Esp     N.    P.   C.  324. 

(4)  Bull.  N.  P.  295.  And  see  the  See  also  Clothier  v.  Chapman,  14 
opinions  of  Buller  J.  and  Grose  J.  in  East,  831,  n.  Didsbury  v.  Thomas, 
Morewood  v.  Wood,  14  East,  330,  n.  14  East-,  323.  Barnes  v.  Mawson, 
3T.  R.  7.9.  In  Webb  V.  Petts,  Nov,  1  Mauie  &  Selvv.  SI.  Blacket  v. 
44,  it  is  said,  the  court  agreed  that  Lowes,  2  Maule  &  Selvv.  494.  Oii- 
proof  by  hearsay,  of  a  modus  for  a  tram  v.  Morewood,  5  T.  K.  123. 
particular   farm  [waa    admissible.      See         (6)  See  1  Maule  &  Selw.  C91. 


252  Hearsay  not  Evidence.  [C!i.  7. 

Old  leases,       a\yc    ^q  satisfactory    information,   and    to   be  inapplicable   to  the 

rent-rolls,  &c.   '    .       .      .  "^  '  ' 

pouit  jn  issue.* 

In  the  case  of  Weeks  v.  Sparke,  (1)  one  of  the  latest  cases  on 

Prescription  ,  .  ,  . 

aflecting gen-  ^his  Subject,  which  was  an  action  for  a  trespass  on  the  plaintiff's 
eral  right.  close,  parcel  of  a  conimon,  &c.  the  defendant  justified  for  a  pre- 
scriptive right  of  common  at  all  times  over  the  place,  &c.  and  the 
plaintiff  in  his  replication  prescribed  to  use  the  place  for  tillage,  &c. 
qualifying  the  defendant's  general  right;  to  support  this  prescrip- 
tive right  of  tillage,  the  plaintiff  offered  evidence  of  reputation, 
which  was  received  at  the  trial ;  and  the  Court  of  King's  Bench 
were  of  opinion,  that  it  had  been  properly  admitted,  on  the  ground 
that  the  right  claimed  by  the  plaintiff",  although  claimed  by  pre- 
scription, yet  was  an  abridgment  of  the  general  right  of  common 
over  the  waste,  and  affected  a  large  number  of  occupiers  within 
the  district. 

Fourthly,  as  to  the  admissibility  of  old    leases,    rent-rolls,  and 
surveys. 

Old  leases,  Ol^  leases  and  old  rent-rolls  have,  in  certain  cases,  been  re- 

rent-rolls,         ceived  in  evidence,   in  favor  of  a  party   claiming  under  the  les- 
sors. (2)      On  a  question,  whether  certain  lands,  which  had  been 

(1)  Maule    &    Selw.    679.     See  City     Abr.    tit.    Evid.    T.     b.    4.3.3    Brown, 
of  London  V.   Gierke,  Carth.  181.  Pari.  Cases,    553.     By   Heath    J.    in    1 

(2)  Newburgh    v.    Newburgh,    Vin.     Campb.  309. 


*  It  has  been  said,  that  in  the  case  of  the  Bishop  ofMeath  v.  Lord  Belfield  (a)  ia 
a  quare  impedit,  after  the  plaintiff  had  given  in  evidence  an  entry,  in  the  register  of 
the  diocese,  of  the  institution  of  one  K.,  (in  which  entry  there  was  a  blank,  where 
the  patron's  name  is  usually  inserted,)  parol  evidence  of  the  general  reputation  of 
the  country  was  offered,  that  K-  was  in  by  the  presentation  of  one,  under  whom 
Lord  Belfield  claimed  ;  and  that  upon  a  bill  of  exceptions,  this  evidence  was  ad- 
judged to  be  admissible,  on  the  ground  that  a  presentation  may  be  by  parol,  and 
what  commences  by  parol  may  be  transmitted  to  posterity  by  parol,  and  that  this 
creates  a  general  reputation.  But  Lord  Kenyon,  adverting  to  this  case,  in  the  case 
of  the  King  v.  Eriswell,  (6)  said,  he  admisted,  that  a  presentation  might  be  by  parol, 
and  might  be  proved  by  parol,  that  is,  by  a  witness  who  was  present  and  heard  it  : 
but  he  denied,  that,  in  such  a  case,  common  reputation  ct)uld  be  given  in  evidence. 
If  it  can,  he  added,  why  might  not  such  evidence  decide  titles  to  estates,  at  least  be- 
fore the  statute  of  frauds,  when  no  written  instrument  was  required  to  make  a  good 
feoflmeut  of  the  greatest  landed  property  in  the  kingdom  ? 

(«)  Bull.   N.    P.    295,   and  cited   by         (6)  3  T.    R.    723.  Tellard    v.    Sheb- 
Buller  J.  in   Rex    v.    Eriswell,    3  T.  R.     beare,  2  Wils.  366. 
719,  S.  C.  reported  1  Wils.  215. 


Sect.  7.]  Hearsay  not  Evidence.  253 

api)roved  from  a  waste,  vvere'subject  to  aright  of  common,  several  Old  leases, 

,,,,  ,  ,  .  riij  rent-rolls,  &c. 

counterparts  of  old  leases,  kept  among  the  muniments  ot  the   lord 

of  the  manor,  by  which  the  land  appeared  to  have  been  demised  ^f*u""^''P»'"t3 
by  the  lord  free  from  any  such  charge,  were  allowed  to  be  evidence 
for  the  plaintiff,  who  claimed  under  the  lord  of  the  manor,  against 
the  defendant  in  trespass,  who  justified  for  common  of  pasture; 
they  were  admissible  in  evidence  to  prove  this  fact,  that,  at  the 
time  of  their  respective  dales,  the  lord  of  the  manor  granted  the 
land  free  from  common;  and  though  possession  under  the  leases 
was  not  shown,  yet  that  was  not  an  objection  against  the  admis- 
sion of  the  evidence  in  this  case,  as  the  leases  were  so  old,  that  no 
person  could  speak  to  possession  under  them.  (1) 

Where  the  question  was  whether  the   plaintiffs  were   entitled  to  Court-rolls. 
a  prescriptive  right  of  exclusive  fishery  in  a  navigable  river,  which, 
they  claimed  under  the  lords  of  the  manor,  they   were  allowed   to 
give   in  evidence  old  entries  of  licences  on   the   court-rolls  of  the  Licences, 
manor,  stating  that  the  lords  of  the  manor  had   the  several  fishery, 
and  had  granted  the  liberty  of  fishing   for  certain  rents:  nor  was   it 
thought  necessary  to  prove  payment  under  these  licences,  as  they 
were  of  such  an  ancient  date,  that  evidence  of  payment  could   not 
reasonably  be  expected.  (2)     The  old  licences  were,  therefore,  ad- 
mitted: but  it  was  added,  that  they   would   not  be   entitled  to  any 
weight,  unless  payment  under  similar  licences  could  be   proved    in 
later  times,  or  that  the  lords  of  the  manor  had  exercised  other  acts 
of  ownership,  which  have  been  acquiesced  in. 

Entries  by  a  deceased  person,  of  the  receipt  of  rent  for  panic- Entries  of  re- 
ular  lands,  would  not  be  evidence  for  a  party  claiming  under  *^^'^  ° 
the  deceased,  to  show  that  the  lands  belonged  to  his  ancestor. 
Thus,  in  the  case  of  Outram  v.  Morewood,  (3)  (where  one  of  the 
points  to  be  established  was,  whether  certain  lands,  described 
in  ancient  title  deeds,  were  the  same,  for  which  certain  rents  had 
been  at  several  times  paid,)  the  Court  of  King's   Bench   deiermin- 


(1)  Clarkson  V.  Woodhouse,  2  T.  R.  (3)  5   T.    R.    123.     And    see   Lord 
412,  (a).  Pomfret  v.  Smith,  7  Brown,  P.  C,  169, 

(2)  Rogers   and  others    v.    Allen,  1  Tornl.  ed.  5  T.  R.  413,  n 
Campb.  309,  before  Heath,  J. 


254  Hearsay  not  Evidence.  [Ch.  7. 

Old  leases,       ed,  that  entries,    made  by   a  deceased   person  under  whom  the  de- 

I '.  fendant  claimed,  acknowledging  the  receipt  of  rent   for  the  j)remi- 

ses  in  question,  were  not  admissible  evidence  for  the  defendant. 
Lord  Kenyon  on  that  occasion  said,  "  This  is  distinguishable  from 
all  the  cases  cited.  In  those,  something  was  produced  in  respect 
of  the  interest  of  the  party;  and  what  the  party  did  or  said  may 
be  evidence  against  himself.  But  here,  the  entry  was  a  mere  pri- 
vate memorandum,  to  remind  the  person  that  he  had  received  the 
rent,  and  cannot  be  admitted  to  decide  the  right  between  these 
parties.  Evidence  of  this  kind  can  only  be  admitted  to  restrain, 
not  to  advance  the  interest  of  the  party  who  makes  it.  What  a 
man  does  in  his  closet  ought  not  to  affect  the  rights  of  third  per- 
sons. There  is  only  one  instance  in  which  this  is  allowed,  name- 
ly, the  books  of  an  incumbent  respecting  his  tithes.  But  that  has 
been  always  considered  an  excepted  case."  "  The  general  rule," 
said  Lord  Hardwicke,  (1)  in  the  case  of  Glyn  v.  The  Bank  of  Eng- 
land, "  is,  that  a  man  cannot  make  evidence  for  himself.  What  he 
writes  or  says  for  himself  cannot  be  evidence  of  his  right,  and  con- 
sequently cannot  be  for  his  representative  claiming  in  his  right  and 
place.  I  will  not  say  (added  Lord  Hardwicke)  how  length  of  time 
may  vary  it;  but  otherwise  it  cannot  be,  any  more  than  for  him- 
self." 

Survey  of  ^  survey  of  a   manor  or    estate,  made   by  the  owner,  is  not 

manor.  evidence  against  a  stranger,  in  favor  of  a  succeeding  owner,  that 

particular  lands  are  parcel  of  the  estate.  (2)  But  a  survey, 
which  was  delivered  by  the  owner  to  a  purchaser  of  part  of  his 
estate,  would  be  evidence  against  such  former  owner  and  against 
a  purchaser  of  the  other  part;  as,  in  the  case  of  Bridgman  v. 
Jennings,  (3)  where  Lord  Holt  ruled,  that  if  A.  be  seised  of 
the  manors  of  B.  and  C,  and  during  his  seisin  of  both  he  cau- 
ses a  survey  to  be  taken  of  the  manor  of  B.,  and  afterwards  the 
manor  of  B.  is  conveyed  to  E.,  and  afterwards  there  are  dis- 
putes between  the  lords  of  the  manors  of  B.  and  C  about  their 
boundaries,  this  old  survey  may  be  given  in  evidence:  but  it 
would  be  otherwise,  said  Lord  Holt,    if  the  two   manors   had  not 

(1)  2  Ves.    43.     Rex  v.  Debenham,         (3)  1  Ld    Raym.  734.  .  Gilb.  Ev.  70. 
2  Barn.  &  Aid.  186.  And  see  Davies  v.  Pierce,  2  T.  R.  53. 

(2)  Anon.  1  Str.  95.  AUott  v.  Wilkinson,  4  Gwill.  15$5. 


Sect.  7.]  Hearsay  not  Evidence.  255 

been  in  the  hands  of  the  same  person,  at  the  time  when  the  sur-  Against  in- 

vey  was   taken.     A   survey,  then,   which  has  been  made  by  a  _^_ 

former  owner  of  the  estate,  is  not  evidence  of  the  locahty  or 
identity  of  land  against  any  person,  who  was  a  mere  stranger  to 
the  survey,  (r) 

Fifthly,  as  to  the  admissibihty  of  declarations  against  interest. 

The  declarations  or  statements  of  deceased  persons  have  been  Declarations 
admitted,  in  many  cases,  where  they  appear  to  be  made  against  rfgt.  ^ 
their  interest;  as,  entries  in  their  books,  charging  themselves  with 
the  receipt  of  money  on  the  account  of  a  third  person,  (1)  or  ac- 
knowledging the  payment  of  money  due  to  themselves.  (2)  In 
either  case,  the  entry  is  to  their  immediate  prejudice,  and  evidence 
of  the  fact,  in  consideration  of  which  the  money  is  said  to  have 
been  received  or  paid.  "  The  princij)le  is,  that  the  entry  is  made 
by  an  individual  conusant  of  a  fact,  at  a  lime  when  it  was  not  in 
dispute,  having  no  interest  to  make  a  false  entry,  and  making  one 
tending  to  charge  himself."  (3) 

Where  the  point  in  issue  was,  whether  a  certain  waste  was  the  By  steward, 
soil  of  the  defendant,  entries  by  a  steward,  since  deceased,  of  mon- 
ey received  by  him  from  different  persons  in  satisfaction  of  trespass- 
es committed  on  the  waste,  were  admitted  in  evidence,  to  show 
that  the  right  to  the  soil  was  in  his  master,  under  whom  the  plain- 
tiff claimed.  (4) 

Rentals,  in  which  a  deceased  bailiff  or  receiver  charges  himself 
with  specified  sums,  are  evidence  to  show  for  what   particular  ten- 
ure, or  in  what  right  the  money  was  received.  (5)      Ancient  docu-  By  collector, 
ments  in  the  possession  of  an  ecclesiastical  corporation,  purporting 
to  be  accounts  furnished  by  some  of  their   members,  employed  to 

(1)  Barry    v.  Bebbington,    4   T.    R.     33.     BuUen    v.  Michell,    2  Price,   413, 
515.      Harpur   v.    Brooke,    3    Woode-     437. 

son,  Lect.  332.     Stead   v.  Heaton,  4  T.  (3)  By   Sir  T.   Plumer,   in   Short  v. 

R.  669.  Lee,  2  Jac.  &  Walk.  475. 

(2)  Warren     v.    Grenville,     2     Str.  (4)  Barry  v.    Bibbington,   4   T.    R. 
1129,  commented  on    by  Lord    Mans-  515. 

field   in   Brydges   v.    Duchess  of  Chan-  (5)  Harpur     v.    Brooke,   2   Woode- 

dos,    2   Burr.    1072,   and   by  Lord  El-  son's   Lect.   332.      Via.    Ab.    tit.    Evi- 

lenborough     in     Higham    v.    Ridgway,  dence,  (A.  b.  15,)  13.     BuUen  v.  Mich- 

10   East,    118.     Doe   dem.   Reece   and  ell,  2  Price,  413. 
others  v.  Robson  and   another,  15  East, 


(r)  See  Note  478,  p.  636. 


256  Hearsay  not  Evidence.  [Ch.  7. 

Against  in-       collect  the  tithes  of  a  rectory  belonging  to  the  corporation,  are  ad- 


terest 


—  missible  in  evidence  in  a  suit  by  their  lessee.  (I)  An  entry  in  the 
book  of  a  land-tax  collector,  stating  a  rale  upon  a  person,  and  pay- 
ment of  the  rate,  is  evidence  of  that  person's  occupation.  (2) 

Bill  of  lading.  A  bill  of  lading,  signed  by  a  deceased  master  of  a  vessel,  for 
goods  to  be  delivered  to  a  consignee,  is  evidence  of  property  in  the 
consignee,  not  only  against  the  master,  but  also,  as  it  seems,  in  an 
action  of  trover  for  the  goods  against  a  third  person.  (3) 

A  written  memorandum  by  a  deceased  man-midwife,  stating 
work  paid.  that  he  had  delivered  a  woman  of  child  on  a  certain  day,  and  re- 
ferring to  his  leger,  in  which  a  charge  for  his  attendance  was 
marked  as  paid,  was  thought  by  the  Court  of  King's  Bench  to  have 
been  properly  received  in  evidence,  upon  an  issue  as  to  the  child's 
age.  (4)  This  entry  was  made  by  a  person,  who,  so  far  from  hav- 
ing an  interest  to  make  it,  had  an  interest  the  other  way:  for  it 
appeared  distinctly  from  other  evidence,  that  the  work  charged  was 
actually  done;  and  the  discharge  in  the  book  repels  the  claim 
which  he  would  otherwise  have  had.  It  appears,  therefore,  to  be 
a  general  principle,  that  if  a  party,  who  has  knowledge  of  the  fact, 
makes  an  entry  of  it,  whereby  he  charges  himself,  or  discharges  an- 
other upon  whom  he  would  otherwise  have  a  claim,  such  entry  is 
admissible  in  evidence.  (5)  (s) 

By  owner  of        Upon  the  same  principle,  in  a  late  case,  in  an  action  of  ejectment 
estate.  ^y.  ^j^g  ^^^^   tenant   in  tail   under  a   settlement  (by  which   an  estate 

was  limited  to  A.  for  life,  remainder  to  B.  for  life,  remainder  to  C. 
his  eldest  son,  for  life,  remainder  to  C.'s  eldest  son  in  tail,  &c.  with 
a  power  to  the  tenants  for  life  to  grant  leases  on  condition  of  reserv- 
ing the  ancient  rent,)  against  the  defendant  who  claimed  as  lessee 
of  C,  to  recover  a  ])art  of  the  estate,  which,  as  the  lessor  of  the 
plaintiff  complained,  had  been  demised  for  less  than  the  ancient 
rent,  the  Court  of  King's  Bench  held,  that  a  letter  addressed  to  B. 

(1)  Short   V.  Lee,  2   Jac.    &  Walk.  (4)  Higham    v.    Ridgway,    10    East, 
464.  109.  110.     2  Price,  413. 

(2)  Doe  dem.  Smith  v.    Cartwright,  (5)  Doe   dem.  Reece    v.  Robson,  15 
1  Ry.  &  Mo   62,  by  Abbott  C   J.  East,  35. 

(3)  Haddow  v.  Parry,  3  Taunt.  305. 


(s)  See  Note  479,  p.  639. 


Sect.  7.]  Hearsay  not  Evidence.  257 

by  one  intimately  acquainted  with  the  property,  purporting  to  be  a  Against  inter- 
particular   account  of  the  ancient   rents   at  that  time,    and  recog-  ! 

nized  as  such  by  B.,  and  preserved  by  the  successive  owners  of 
the  estate,  ought  to  have  been  received  at  the  trial,  as  evidence  of 
the  ancient  reserved  rent  against  C.  (a  succeeding  tenant  for  life, 
subject  to  the  restrictions  of  the  same  power)  and  also  against  the 
defendant  claiming  under  C.  This  old  paper,  so  accredited  and 
adopted,  was  considered  to  be  equivalent  to  a  declaration  by  B. 
himself.  Lord  Ellenborough,  in  delivering  the  judgment  of  the 
court,  said,  "  The  contents  of  the  paper  were  adverse  to  the  title 
of  the  person  who  had  possession  of  it,  by  diminishing  the  interest 
in  the  fine  on  renewal,  in  the  same  proportion  as  it  raised  the  rent 
to  be  reserved.  Then  at  such  a  distance  of  time,  with  the  means 
of  knowledge  which  he  had  of  the  fact,  and  his  interest  in  de- 
claring it  the  other  way,  we  think  that  his  declaration  is  evidence 
of  the  fact  to  go  to  the  jury."  (1)  [t) 

Where  the  question  was,  whether  some  horses,  which  had  been  By  owner  of 

property. 

taken  by  the  defendant  under  a  heriot  custom,  belonged  to  the 
plaintiff  or  to  one  A.  B.,  a  deceased  tenant  of  the  defendant,  dec- 
larations by  A.  B.  were  offered  in  evidence  for  the  purpose  of  prov- 
ing, that  the  horses  belonged  to  the  plaintiff  before  A.  B.'s  death, 
in  which  declarations  A.  B.  stated  that  he  had  given  up  his  farm 
and  all  his  stock  to  the  plaintiff.  This  evidence  was  rejected  at 
the  irialj  held  that  tiie  declarations  ought  to  have  been  admitted, 
since  they  were  against  the  interest  of  the  person  who  made  them, 
and  might  have  been  given  in  evidence  against  him  in  his  life-time, 
if  the  plaintiff  had  brought  an  action  for  the  horses.  (2)  (m) 

Upon  the  same   principle,  a   paper  signed   by   many  deceased  By  copyhol- 
copyholders   of   a  manor,  in)porting  what   was   the  general  right 

(1)  Roe  d.  Brune  v.  Rawlings,  7  stated  infra.  And  see  Lady  Dart- 
East,  279,  290.  See  also  the  follow-  mouth  v.  Roberts,  16  East,  334  ; 
ing  cases,  in  which  declarations  of  Hodgson  v.  Fullnrton,  4  Taunt.  7S7  ; 
deceased  persons,  against  their  in-  Wadley  v.  Bailiss,  5  Taunt.  752  ; 
terest,  were  received  in  evidence  ;  Searle  v.  Lord  Barrington,  stated  in 
Beggalley   v.    Jones,    1    Campb.     367  ;  vol.  2. 

Morewood    v.    Wood,   14     East,    328  ;  (2)    Ivat   v.    Finch,    1    Taunt.    Rep. 

Doe  d.  Reece  v.  Robson,    15  East,  33  ;  141. 
Price    V.     Littlewood,   3   Campb.    288, 

(0  See  Note  480,  p.  643.     (u)  See  Note  481,  p.  644. 

Vol.  I.  33 


258  Hearsay  not  Evidence.  [Ch.  7. 

Against  inter-   of  common  in  each  copyholder,  and  agreeing  to  restrict  it,  is  evi- 

'  dence  of  reputation  even  against  other  copyholders  not  claiming 

under  those  who  signed   it.  (1)      A  declaration    by  the   owner   or 

occupier   of  adjoining  land,   that  his  neiglibor's   land  extends  to 

such  a  spot,  accompanying  an  act  of  forbearance  to  go  beyond  the 

spot  for  that  reason,  (or  without  such  act,  if  he  speaks  against  his 

interest,)  is   evidence,  that  the  land  extends  so  far.  (2)  {v)     And 

By  occupier  of  the  declaration   of  a  deceased   occupier  of  land,  that  he  rented  it 

^^  '  under  a  certain  person,  is  evidence  of  that  person's  seisin;  (3)  it  is 

evidence  against  a  party  claiming  under  the  deceased,  as  his  heir 

at  law,  to  explain  the  nature  of  the  occupation,  and  to  show  that 

it  was  not  adverse.  (4)  {iv) 

Such  admissions  or  declarations  against  interest  appear  to  be 
evidence  upon  the  same  principle  as  the  acts  of  a  party  against  his 
interest;  they  differ  in  degree  and  in  their  effect,  rather  than  in 
their  nature.  An  act  of  forbearance  on  one  side  is  an  admission  of 
right  on  the  other;  and  proof  of  the  exercise  of  a  right,  which  has 
been  acquiesced  in,  is  still  stronger  evidence  that  the  right  exists. 
It  is  the  constant  practice  to  receive  such  evidence  on  questions 
concerning  tolls,  rights  of  way,  freehold  in  wastes,  and  other  cases 
of  the  same  kind.  (5)  (x) 

The  case  of  Goss  v.  Watlington  (6)  affords  another  example,  as 
to  the  admissibility  of  written  entries  made  by  a  person,  since  de- 
ceased. This  was  an  action  against  a  surety  of  A.  B.  deceased,  on 
a  bond  conditioned  for  the  performance  of  duty  by  A.  B.,  as  collec- 
By  principal  toi'  of  rates,  &c.,  and  for  his  delivering  up  to  his  employer  all  books 
and  accounts,  entrusted  to  his  care  as  such  collector.  For  the  pur- 
pose of  proving  the  receipts  of  money  by  the  collector,  certain  books 
were  produced,  which  had  been  delivered  to  him  from  his  predeces- 
sor, and  which,  on  the  death  of  A.  B.,  were  delivered  over  to  his 
successor:  these  books  contained  entries  of  persons  rated,  and,  oppo- 
site the  names,  the  amount  of  the  respective  rales;  many  of  the  names 

(1)  Chapman  v.    Cowlan,    13   East,     367.     Doe  clem.   Hunian   v.    Pettelt,    5 
10.  Barn.  &.  Aid.  223. 

(2)  Sir  T.  Stanley  v.  White,  14    East,         (4)  5  Barn.  &  Aid.  223. 
332,  339,  341.  (5)    1    Str.    659.      14    East,    342.     1 

(3)  Uneie  V.    Watson  4    Taunt.    16.     Canipb.  310.     5  Taunt.  752. 
Doe  dem.  Baggalley  v.  Jones,  1  Campb.         (6)  3  Brod.  &  Bing.   132. 

(u)  See  Note  482,  p.  669.     {iv)  See  Note  483,  p.  669.     (x)  See  Note  484  p.  669. 


as  agamst 
surety. 


Sect.  7.]  Hearsay  not  Evidence.  259 

were  ticked  off,  to  show  tliat  the  collectoi-  had  received  the  sum  Against  intor- 

est. 
assessed.     Receipts  also,  signed  by  the  deceased  collector,  for 

money  paid  to  him  in  his  official  capacity,  were  produced.  On  the 
first  point,  the  Court  of  Common  Pleas  were  of  opinion,  that  the 
entries  made  by  the  deceased  collector,  charging  himself  with  the 
receipt  of  money,  and  made  by  him  in  the  public  books  of  his  of- 
fice, for  the  faithful  delivery  of  which  books  the  defendant  was 
surety,  were  admissible  in  evidence  against  the  surety.  Upon  the 
second  point,  namely,  the  admissibility  of  the  receipts,  the  Court 
thought  there  was  not  enough,  in  the  circumstances  of  the  case,  to 
admit  the  receipts  in  evidence  against  the  defendant,  [y) 

The  memorandum  or  entry,  before  it  can  be  received  in  evi- p^oofofgntry- 
dence,  must  be  proved  to  be  authentic;  as,  by  showing  it  to  be 
the  hand-writing  of  the  deceased  person,  who  knew  the  fact 
there  stated,  or  that  it  was  signed  by  him;  (1)  or,  if  signed  by 
another,  that  it  was  made  by  his  order,  or  afterwards  acknowledg- 
ed by  him.  (2) 

When  a  written  entry  or  document  is  offered  in  evidence  as 
the  statement  of  a  person  in  a  particular  capacity  (as,  collector 
of  tithes,  steward,  collector  of  taxes,)  it  should  be  proved,  that 
the  person  was  in  that  capacity,  and  invested  with  that  character. 
Unless  this  fact  is  previously  ascertained,  the  proposed  writing 
is  not  admissible.  (2)  The  possession,  out  of  which  the  docu- 
ment comes,  is  always  to  be  regarded,  and  the  document  itself 
may  often  supply  important  internal  evidence  of  its  being  authen- 
tic. (3)  (a) 

In  all  the  "cases  which  have  been  mentioned  on  this  subject,  Proof  of  death, 
the  person,  who  made  the  entry  or  declaration  in  question,  was 
deceased  at  the  time  of  the  trial ;  if  the  rule  were  not  confined 
to  such  cases,  there  would  be  great  danger  of  collusion.     It  has, 
therefore,  been  held,  that  such    evidence  is  not  admissible,  where 

(1)  4  T.  R.  515,  516.  'Jones  v.  (2)  Short  v  Lee,  2  Jac.  &  Walk. 
Waller,  3  Gwill.  847.?    Yate  v.  Leigh,    464,  467. 

3  Gwill.  86L  (3)    Doe  d.    Webber    v.    Lord    G. 

Thvnne,    10   East,    206,   4  T.    R.  516. 


(y)  See  Note  485,  p.  669.     (2)  See  note  486,  p.  673.     {a)  See  Note  487,  p.  673. 


260  Hearsay  not  Evidence.  [Cli.  7. 

Rector's  or  Vi-  the  person  is  incapable  of  attending  from  illness.   (1)  [b)      This  is 
car's  book.        ^j^^   ^^j^   respecting  the  proof  of  modern  entries  in  private  books. 
But  entries  in  ti)e  public  books  o^  public   companies  are  admitted 
without  the  proof  of  the  officer  who  made  them.  (2) 

Sixthly,  as  to  the  admissibility  of  the  books  of  deceased  rectors 
or  vicars. 

Rector's  end  Entries  made  by  a  deceased  rector  or  vicar,  as  to  the  receipt  of 
Vicar'fl  books.  g(.j.igsiastical  dues,  have  been  in  several  cases  admitted  as  evidence 
for  his  successor;  (3)  because,  it  is  said,  he  had  no  interest  to  mis- 
state the  fact  in  making  an  entry  which  could  not  possibly  be  evi- 
dence for  himself.  (4)  ''  This,"  as  Lord  Hardwicke  once 
j^aid,  (5)  "is  going  a  great  way,  but  has  been  allowed,  because 
the  parson  knows,  that  his  entry  cannot  benefit  either  himself  or 
his  representative,  who  has  nothing  to  do  with  the  living  :  and  it  is 
not  to  be  presumed  (he  added,)  that  the  parson  would  make  false 
entries  for  his  successor,  who  stands  indifferent  to  him."* 

The  cases  have  even  gone  still  further  :  and  similar  entries, 
made  by  deceased  impropriate  rectors,  have  been  received  as 
evidence  for  their  successors,    although    objected    to  as  coming 

(1)  Harrison  v.  Blades,  3  Campb.  63.  Walter  v.  Holman,  4  Price,  171. 
457.  Manby  v.  Curtis,  1  Price,  282,  Parsons  v.  Bellamy,  4  Price,  190. 
235.  Cooper  v.  Marsden,  1  Esp.  N.  Armstrong  v.  Hewitt,  4  Price,  21S. 
P.  C.  2,  stated  infra.  In  this    last    case,  the    vicar's  bock  was 

(2)  Hodason  v.  Fullarton,  4  Taunt,  produced  from  the  parish-chest;  and 
787,  by  M'ansfieid  Ch-  J.  The  officer  it  was  said,  that  there  were  two  oth- 
was'  prevented  from  attending,  by  ill-  er  legitimate  depositories  for  such 
ness.  This  point  was  not  suggested  books,  besides  this  of  the  parish-chest, 
afterwards,  among  the  grounds  for  en-  namely,  the  bishop's  registry,  and 
tering  a  nonsuit.  the    registry    of   the  archdeacon  of  the 

(31  Le  Gross  v.    Lovemoor,    2  Gwill-     diocese. 
529.     Lord    Arundel's    case,    2  Gwill.  (4)  7  East,    290.     1  Wightwick,  63. 

620      Perigal     v.    Nicholson,    Wightw.  (5)  2  Ves.  43. 


♦  Such  evidence  is  said  to  have  been  refused  in  Le  Gross  v.  Lovemoor,  2 
Gwill  527  ;  has  been  mentioned  as  a  singular  exception  by  Lord  Kenyon  in 
Outram  v.  Morewood,  5  T.  II.  123  ;  was  disapproved  of  by  Mr.  Baron  Wood 
in  Perigal  v.  Nicholson,  1  Wightw.  Rep.  63,  and  irv  Bullen  v.  Michel,  2  Price, 
436;  alio  by  Price  B.  in  Woodnolh  v.  Ld.  Cobham,  2  Gwill.  653.  King,  C.  J.,  in 
a  case  before  him,  in  1719,  s.iid,  this  evidence  had  been  received  yjer  cursum 
Scaccarii,  though  he  could  not  give  a  reason  for  it;  Vin.  Ab.  Ev.  (T.  b.  73.)  Vide 
supra,  p.  230,  as  to  the  general  objections,  to  which  hearsay  evidence  i.s  liable; 
and  Outram  v.  Morewood,  supra,  p.  251,  n.  (5  ) 


(b)  See  Note  488,  p.  673. 


Sect.  7.]  Hearsay  not  Evidence.  261 

from  the  owners  of  the  inheritance.  (I)     Entries  of  tithes  received  Rector's  or  Vi- 

,       ,        ,         r  1      •       •      1  •  .  I  car's  book. 

in  the  books  of  an  ecclesiastical  aggregate  corporation,  lo  whom  a 

rectory  belonged,  are  evidence  for  their  successors:  the  admissibil- 
ity of  the  entries  does  not  appear  to  be  affected  by  the  considera- 
tion, whether  the  corporation  is  sole  or  aggregate.  (2) 

In  a  case  where  a  question  arose  between  an  impropriate  rector 
and  a  vicar  respecting  agistment  tithe,  the  Court  of  Exchequer 
held,  that  the  books  of  a  deceased  lessee  of  the  rectory,  stating 
the  receipt  of  such  tithe,  were  evidence  after  the  determination  of 
the  lease,  for  the  impropriator;(3)  and,  on  the  other  hand,  entries 
by  the  steward  of  a  former  deceased  owner  of  the  estate,  containing 
an  account  of  payments  to  the  vicar  in  lieu  of  the  tithes  of  particu- 
lar lands,  have  been  admitted  as  evidence  for  a  succeeding  owner 
against  the  impropriator.  (4) 

In  the  late  case  of  Perigal  v.  Nicholson  and  others,  (5)  on  a 
bill  for  tithes  filed  by  the  vicar  against  the  defendants,  who  in- 
sisted upon  a  modus  for  hay  and  agistment,  the  Court  of  Excheq- 
uer admitted,  as  evidence  for  the  plaintiff,  an  entry  in  the  parish 
register,  stating,  that  various  moduses  were  due  from  the  different 
townships  of  the  parish  for  hay  only,  in  which  entry  the  sum  total 
of  all  the  moduses  was  in  the  hand-writing  of  a  preceding  vicar, 
but  it  did  not  appear  by  whom  the  other  part  of  the  entry  had 
been  made.  The  majority  of  the  Court  held,  as  the  report 
states,  that  the  entry  was  admissible,  upon  the  ground  that  the 
vicar  had  no  interest  beyond  his  incumbency,  and  there  did  not 
appear  to  be  any  dispute  at  the  time,  or  previously,  respecting 
these  tithes;  and  this  entry,  by  admitting  a  modus  in  one  article, 
was  in  abridgement  of  the  rights  of  the  vicar,  and  it  was  the  ap- 
plication only  which  now  accidentally  became  favourable  to  his 
successor. 

It   is    essential   in   such  cases,   that  the  reclor  or  vicar,   wi)ose  rroorof  death, 
books  are   offered   in  evidence,   should  appear  to  be  dead;  if  not 

(1)  Anon,  case,  Bunb.  46.  Anon.  (3)  Illingworth  v.  Leigh,  4  Gvvill. 
case,  before  King  C.    J.,  Vin.    Ab.    Ev.     1618. 

T.  b.  73,  and   T.  b.   117,    art.    3.     See  (4)   VVoodnoth    v.    Lord    Cobham,    2 

Short  V.  Lee,  2  Jac  &  Walk.  479.  Gwill.  653.     Bunb.  180,  S.   C. 

(2)  Short  V.  Lee,  1  Jac.  &  Walk.  (5)  Wightw.  63;  Wood  B.  dissenting. 
478. 


such  evidence. 


262  Hearsay' not  Evidence.  [Ch.  7. 

Rector'sor  Vi- dead,  lie  riuist  be  called  to  prove  the  receipt  of  the  sum  specified. 

^ 'J There  have  indeed  been  cases,  where,   from  the  circumstance  of 

finding  the  books  of  a  former  vicar  in  the  possession  of  a  suc- 
ceeding vicar,  so  far  back  as  between  the  times  of  Charles  the 
Second  and  George  the  Second,  the  death  of  the  vicar  might 
be  reasonably  presumed.  The  case  of  Jones  v.  Waller  is  an 
instance,  (1)  in  which  the  book  of  a  collector  of  tithes  in  1679 
was  admitted  as  evidence  in  1753,  because  it  was  not  reasonable 
to  suppose  that  the  collector  was  then  alive.  In  the  late  case  of 
Manby  v.  Curtis,  (2)  on  the  other  hand,  where  the  receipt  pur- 
ported to  have  been  given  in  the  year  1762,  the  Court  of  Ex- 
chequer determined,  that  the  death  of  the  person,  in  whose  name 
the  receipt  was  signed,  could  not  be  presumed  after  a  lapse  of  fifty 
years,  and,  as  this  fact  had  not  been  proved,  that  the  document 
ought  not  to  be  received  in  evidence. 

Remarks  on  The  cases,  in  v\fhich  a  deceased   rector's  books  have  been  re- 

ceived as  evidence,  in  favour  of  a  succeeding  rector  against  a 
stranger,  appear  to  be  very  distinguishable  from  the  cases,  before 
cited,  in  which  the  declarations  or  written  entries  were  made  by 
deceased  persons,  peculiarly  if  not  exclusively  acquainted  with 
the  fact.  The  utmost  to  be  said  of  these  is,  that  the  declarations 
generally  related  to  old  facts,  and  were  made  by  persons  who 
could  not  have  used  them  in  their  own  favour;  and  the  same 
may  be  said  of  a  great  variety  of  cases,  in  which  the  declarations 
of  deceased  persons  have  been  uniformly  rejected.  The  objection 
against  hearsay,  under  which  title  such  entries  must  be  classed, 
(for,  with  respect  to  their  abmissibility,  it  is  not  material,  whether 
the  declarations  were  written  or  merely  spoken,)  is,  not  that  the 
person,  who  asserted  the  fact,  might  have  been  interested  to 
misrepresent  it,  but  that  the  assertion  was  made  not  under  the 
sanction  of  an  oath,  and  that  the  party,  against  whom  the  evi- 
dence is  offered,  had  no  opportunity  of  questioning  the  person 
as  to  the  supposed  fact.  Here,  the  declarations  were  not  against 
the  interest  of  the  person  who  made  them,  and  were  produced 
against  a  stranger;  and  further,  the  rights,  sought  to  be  establish- 
ed by  such  declarations,  were  in  their  nature  capable  of  various 
other  kinds  of  proof. 

(1)  3  Gwill.  847.  ing  of  Mr.  Baron  Wood  in  2  Price,   436, 

(2)  1  Price,  225,  229,  235.   Mr.  Bar-     437- 
on  Wood  dissented.   See  also  the  reason- 


Sect.    7.1  Hearsay   not   Evidence.  263 

Seventhly,  as  to  the  admissibihty  of  the  books  of  a  tradesman.    Tradesman's 

book. 


Entries  in  the  books  of  a  tradesman  by  his  deceased  shopman, 
who  therein  supplies  proof  of  a  charge  against  himself,  have  been 
admitted  in  evidence,  as  proof  of  the  delivery  of  goods,  or  of  other 
matter  there  stated  within  his  knowledge.  Thus,  in  an  action  of 
assumpsit,  where  the  usual  course  of  the  plaintiff's  dealings  ap- 
peared to  be,  that  the  drayman  of  the  plaintiff,  who  was  a  brewer, 
should  come  every  night  to  the  clerk  of  the  brewhouse,  and  give 
him  an  account  of  the  beer  delivered  out  by  them,  which  he  set 
down  in  a  book  kept  for  the  purpose,  and  the  draymen  signed  it 5 
the  drayman,  who  signed  the  particular  entry,  offered  in  evidence, 
had  since  died,  but  his  hand-writing  was  proved;  this  entry  was 
held  to  be  good  evidence  of  the  delivery  of  the  beer,  for  which  the 
action  was  brought.  (1) 

This  declaration  of  the  tradesman's  servant,  of  having  delivered  Remarks  on 

such  6VIQCDCG 

the  goods,  is  an  implied  admission,  that  he  received  them  for  that 
purpose,  and  would  have  been  evidence  against  him,  in  an  action 
for  not  delivering  them  according  to  his  instructions.  But  it  is 
clearly  distinguishable  from  entries  in  the  book  of  a  receiver,  who 
by  making  a  gratuitous  charge  against  himself,  knowingly  against 
his  own  interest,  and  without  any  equivalent,  repels  every  suppo- 
sition of  fraud.  A  disposition  to  commit  fraud  would  have  tempt- 
ed him  to  suppress  altogether  the  fact  of  his  having  received  any 
thing,  or  to  misrepresent  the  amount  of  the  sum,  but  not  to  mis- 
state the  ground  or  consideration  for  which  it  was  received;  that 
is,  not  to  mis-state  the  only  fact  sought  to  be  established  by  the 
proposed  evidence.  On  the  other  hand,  the  declaration  of  the 
tradesman's  servant  is  oflered  in  evidence  to  prove  the  fact  of  de- 
livery, and  as  he  gives  the  account  not  against  his  own  interest, 
which  is  some  security  for  the  truih  of  the  statement  in  the  other 
case,  the  probability  of  his  account  being  true  or  false,  is  neither 
greater  nor  less  than  the  probability  of  his  being  honest  or  dishon- 
est, which  is  nothing  more  than  may  be  said  in  every  case  of  hear- 
say.     The  circumstance  of  his  thereby  acknowledging  the  receipt 

(1)  Price  V.    Ld.  Torrington,  1    Salk.  copy  of  a   licence,  in  a   merchant's  let- 

285;  2   Ld.    Raym.    873,    S.    C.      See  ter-book,  written   by  a  deceased    clerk, 

Pitman    v.  Madox,    2   Salk.    690;  Cal-  and   proved  to  be  in   the  usual   course 

vert  V.    Archbishop    of   Canterbury,    2  of  business,  was   admitted   in  Hagedorn 

Esp.    N.    P.    C.    645.     The   entry  of  a  v.  Reid,  3  Campb.  379. 


264  Hearsay  not  Evidence.  [(h.  7. 

Tradesman's    of  goods,   whicl),  it  may  be   said,  would   be  evidence  in  an  action 

°°  ' against  him,  seetns  to   amount   to   little  or  nothing.     It  was   the 

least  he  could  say:  to  have  said  nothing  at  all,  would,  as  he  must 
have  known,  necessarily  lead  to  some  inquiry.  These  considera- 
tions may  serve  to  show,  how  cautiously  such  declarations  by 
shopmen  are  to  be  admitted  in  evidence,  to  charge  third  per- 
sons with  the  receipt  of  goods:  more  particularly,  as  the  trades- 
man may  easily  be  furnished  with  evidence  of  delivery,  by  taking 
a  memorandum  from  the  purchaser,  or  by  requiring  some  other 
security. 

Entry  by  shop-       The  entry  in  the   tradesman's   book   ought  to   have   been  made 
'^^"  by  the   shopman:  or,    if  not  actually  written   by   him,   should   at 

least  ajjpear  to   have  been  observed    by  him  soon   after  it  was 
made,  so   as  to   enable   him  to  speak  to  its   correctness,  and   that 
the   entry  may  be  tantamount  to  one   made   by  the  shopman  him- 
Shopman  to  be  self.  (1)      If  the  shopman  is  living,  he  ought  to  be   produced  as  a 
^^"^*^'  witness,  that  he  may  explain  the  circumstances   and   dealings,  on 

which  the  entry  was  founded.  When  he  is  examined,  he  may 
use  the  entry  as  a  memorandum;  and  the  other  party,  charged 
with  the  debt,  will  then  have  an  opportunity  of  examining  into  its 
correctness.  If  the  person,  who  made  the  entry,  was  employed, 
as  shopman  or  clerk,  to  deliver  goods,  &,c.  and  he  is  since  dead, 
an  entry  made  by  him  will  be  evidence  under  certain  restrictions. 
But  proof  of  the  hand-writing  of  the  clerk,  and  that  he  is  gone 
abroad,  and  is  not  likely  to  return,  has  been  held  not  to  be  suffi- 
cient to  make  such  an  ex  parte  memorandum  admissible  in  evi- 
dence. (2) 

Examples  ^"  ^^^^  ^^^^  0^  Evans  and   Lake,  (3)  a  merchant's  books  were 

received  in  evidence  under  particular  circumstances.  The  ques- 
tion there  was,  whether  certain  goods,  which  had  been  bought 
in  the  name  of  Mr.  Lake,  were  purchased  on  his  own  account, 
or  in  trust  for  Sir  Stephen  Evans.  To  prove  the  latter  of  these 
positions,  the  assignees  of  Sir  Stephen  Evans,  who  were  the 
plaintiffs,  first  showed,  that  there   was  no   entry  in  the  books  of 

(1)  Digby  V.  Stedman,  1    Esp.  N.  P.         (3)  Bull.     N.    P.  282,  283.    and    see 
C.  327.  Cooper  v.  Marsden,  1  Esp.  N.  P.  C.  1. 

(2)  Cooper    v.  Marsden,  I   Esp.  N.  P- 
C.  2. 


Sect.  7.]  Hearsay  not  Evidence.  265 

Mr.  Lake   relatins;  to  iliis  transaciion;  ihey  then  produced  several  Tradesman'* 

o  '  J  I  book. 

receipts  in  the  possession  of  Sir  S.  Evans  for  the  paynfient  of  part  . * 

of  the  goods,  and  on  the  back  of  the  receipts  there  was  a  reference 
in  the  hand-wriling  of  Sir  Stephen's  book-keeper,  since  deceased, 
to  a  certain  shop-book  of  Sir  Stephen.  Upon  this,  the  question 
was,  whether  the  book  so  referred  to,  in  which^was  an  entry  for 
tiie  payment  of  money  for  the  whole  of  the  goods,  sliould  be  read. 
And  the  court  of  King's  Bench,  on  a  trial  at  bar,  adn)itted  the  en- 
try, not  only  as  to  the  part  mentioned  in  the  receipts,  but  also  as 
to  the  remainder  of  the  goods  then  in  the  hands  of  Mr.  Lake's  son. 
Li  this  case,  (which  Lord  Hardwicke  has  observed  upon,  as  "  new 
and  having  gone  a  great  way"  (I),)  the  entry  was  not  oflered  by 
the  assignees  as  evidence  of  payment  against  the  seller  of  the 
goods,  but  as  corroborating  evidence  to  show,  that,  while  the  books 
of  the  other  party  concerned  took  no  notice  whatever  of  the  goods, 
those  of  Sir  S.  Evans,  under  whom  the  plaintiffs  claimed,  treated 
the  goods  as  bought  on  his  account. 

In  another  case,    where  the  plaintifF,    to  prove  delivery  of  wine  ^°'''y  '"  !^""^ 
1        t        I    I     1         •  1  •  person's  book. 

to  the  defendant,    produced  a  book  belongmg  to  his  cooper,  since 

dead,  whose  name  was  subscribed  to  several  articles,  which  it  was 
proposed  to  read,  after  proof  of  the  hand-writing,  Lord  Raymond 
C.  J.  would  not  allow  it,  saying  it  differed  from  Lord  Torrington's 
case.  (2)  And  Lord  Kenyon  ruled,  in  the  caseof  Calver  v.  Arch-  Entry  of  agree- 
bishop  of  Canterbury,  (3)  that,  in  an  action  for  the  hire  of  a  pair  of 
horses,  an  entry  by  the  plaintiff's  servant  since  dead,  stating  the 
terms  of  the  agreement  with  the  defendant,  ought  not  to  be  ad- 
mitted, (c) 

In  an  action  by  a  tavern-keeper,  (4)  it  appeared,  that  the  defend-  Pook  open  to 
ant  belonged  to  a   club,  which   was   held  at  the   [)laintifi''s   l^ouse,  gpgg^jjon]^ '"' 
and  that  in  a  room,  where  the  club  met,  a   book  used   regularly  to 
be  kept  open,  in  which  the  plaintifi^'s  servants  entered  the  articles, 
as  they  were  ordered  by  the  members  of  the  club,  who  had  there- 
by an  opportunity  of  iiispecting  and  correcting  the  account.      Lord 

(1)  Glyn  V.  Bank  of  England,  2  Ves.         (3)  2  Esp.  N.  P.  C.  fi!6. 

43.  (4)   Wilizie  v.    AdiiiuBon,    K.  B.    EiU 

(2)  Clerk    v.    Bedford,    Hull.    N.  P.     after  Mich    term,  17S9,  ?<;9. 
582.     Sea   Cooper  ?.    Marsden,  1    Esp. 

N.  P.  C.  1. 


(c)  See  Note  489    p.  674. 

Vol.  I.  34 


266 


Hearsay  not  Evidence. 


[Ch.  7. 


Tradesman's     Kenyon  admitted    tlie  book   as  evidence  of  tlie  delivery,  tliough  it 

^°"^' ,  was  not  proved  that  the  servants,  who  made  the  entry,  were'dead, 

nor  was  their  absence  accounted  for,  and  only  liieir  hand-writing 
was  proved.  The  daily  account  in  the  book  was  in  this  case  con- 
sidered as  tantamount  to  a  bill  delivered  and  admitted  bv  the  de- 
fendant, (d) 


St.  7  J.  1.  The  Stat.  7  J.  I,  c.  12,  enacts,  that  the  shop-book  of  a  trades- 

man shall  not  be  evidence,  in  any  action  for  wares  delivered,  or 
work  done,  above  one  year  before  the  bringing  of  the  action,  ex- 
cept the  tradesman  or  his  executor  shall  have  obtained  a  bill  of 
debt  or  obligation  of  the  debtor  for  the  said  debt,  or  shall  have 
Limitations  as  broua,ht  against  him  some  action,  within  a  year  next  after  the  de- 
»o  ume.  livery  of  the  wares,  or  the  work  done.  (1)      And  the  2d  section  pro- 

vides, that  nothing  in  the  act  shall  extend  to  the  mutual  trading 
and  merchandize  between  tradesman  and  tradesman.  At  the  lime 
of  making  this  act  of  parliament,  there  was  an  opinion  growing  up, 
that,  after  a  certain  length  of  time,  a  man's  shop-books  would  be 
evidence  for  him,  after  the  year:  to  prevent  which  the  act  was 
made.  (2)  However,  the  book  is  not  evidence,  even  within  the 
year,  except  under  particular  circumstances,  (c) 


Entry  by 
tradesman. 


Entry  by 
bankrupt. 


An  entry  made  by   a  tradesman  himself,   stating   the  delivery  of 

goods,  is  not  evidence  for   him;  but  whether  made   by  him  or  not, 

it  may  often  serve  as  a  memorandum  to  refresh  the  memory  of  the 

shopman,  and  (■■r  that  purpose  may  be  used  Iiy  him.  (/)      An  entry 

by  a  tradesman,  stating  a  debt  due  from  himself  to  a  third  person, 

is  manifestly  good  evidence  of  the  debt,  as  a  statement  against  his 

interest;  thus,  entries   by  a  bankrupt,  and   an  account   signed   by 

bim  before  his   bankruptcy,  ch.aiging   himself  witli  a    balance,  are 

admissible  as  evidence  of  the  petitioning  creditor's  deltt  in  an  action 

Time  of  mak-  ^    ^|jg  assignees.  (3)      It  is  essentially  necessary,  in  such  cases,  to 
log  entry.  ■'  o  \    /  ■/  '  .    ■ 

prove  the  signing  of  the  account,  or   the  m.akmg  ol  the  entry,  to 

have  been  before  the  act  of  laukiup-U y,  and   to  [)rove  this  by  ex- 
trinsic evidence,  (g) 


(1)  Sikea  V.    Marshall,    2  Fep    N.  P. 
C.  706. 

(2)  P>y  Ld.    IliirdvvicUe,  2    Ves     43, 
376 


(C)  Walls  V.  Tl.orpe,  1  Campb. 
ST6  IJoi;ro  v.  Corvloii,  4  Taunt- 
£60. 


{d)  See  Note  490,  p.  679.  (c)  SeeKote  491,  p.  682.  (  / )  See  Note  492,  p.  703. 
ig)  See  Note  493,  p.  701, 


Cli.  8.]         Of  the  Examination  of  fViinesses.  257 

CHAP.  VIII. 

Of  the  Examination  of  JVitnesses. 

Aftek  considering,  in  the  lasl  chapter,  what  kind  of  evidence 
ought  to  be  produced  for  ascertaining  the  points  in  issue,  the  next 
subject  of  inquiry  relates  to  the  manner  in  which  witnesses  are  to 
be  examined. 

The  ordinary  mode  of  proceeding  in  the  courts  of  common  law,  Examination 
,  .       .  I.         .  .     ,  ,,  V   ...     as  to  intereit. 

preparatory  to  the  exammation  ol  a  witness,  is  to  swear  {k)  turn  m 

chief,  unless  an  objection  should  be  made  to  his  competency;  (i) 
in  which  case,  the  practice  formerly  was  to  examine  him  on  the 
voire  dire;  {j)  and  this  was  so  strictly  observed,  that,  if  a  witness 
were  once  examined  in  chief,  he  could  not  afterwards  be  objected 
to  on  the  ground  of  interest.  (1)  But  in  later  times,  the  rule  has 
been  to  a  certain  extent  relaxed,  and  now,  if  it  sh.ould  be  discover- 
ed in  any  stage  of  the  trial,  before  the  close  of  a  witness's  exami- 
nation and  before  his  dismissal,  that  he  is  interested,  his  evidence 
will  be  rejected.  This  is  as  well  for  the  convenience  of  the  Court, 
a'j  for  the  purposes  of  justice.  The  examination  of  a  witness,  to 
discover  whether  he  has  any  interest  in  the  cause,  is  frequently  to 
the  same  cfTect  as  his  examination  in  chief;  it  therefore  saves  time, 
and  is  more  convenient,  that  the  witness  should  be  sworn  in  chief 
in  the  first  instance;  and  if  it  should  afterwards  appear,  in  tlie  pro- 
gress of  the  examination,  that  he  is  interested,  it  will  then  be  time 
to  take  the  objection.  (2)  [k) 

This  relaxation,  however,  of  the  ancient  rule,  does  not  extend  so  Cross-examln- 
~  III  11  •       •  I    ation  as  to  in- 

lar,    as   to    allow   tlie   counsel  on    tlie   cross-examination,  to  ask  terest  under  a 

the  witness  every  sort  of  question,  which   might   be  proper  on  the  ^'"■ 
voire  dire.  (/)      For  example,  after  an  examination  in  chief,  a  witness 
is  not   to  be  cross-examined  as   to  the  contents  of  a  will,  not   pro- 
duced   in   court,  under  uliich   it   is  suggested  that  betakes  some 

(1)  See  Lord  Lovat's  case,  9  ^'t  Tr.  Stone  v.  Blackburn,  1  Esp.  N.  P.  C. 
639,646,704.  37.     Beeching   v.  Gower,  Holt,    N.  P. 

(2)  Turner  v.  Pearte,  i  T.  K.  717.  C.  313. 
Perigai   v.   Nicholson,    1    Wightw.    64. 


(A)  See  Note  494,  p.  705.     (i)  See  Note  495,  p   706.    (J)  See  Note  496,  p.  706. 
(/c)  See  Note  497,  p.  707.     {I)  Soe  Note  498,  p.  709, 


268 


Of  the  Examination  of  Witnesses.        [Ch.  8. 


Examination     interest,  nlihoiigli  such  questions  niiglit  be  properly  asked  in  anex- 
jn  chief.  .       .  .  . 
annnaiion  on  tlie  von'e  dire.  (1)    (m) 

AVIien  ilie  witness  has  been  regularly  sworn,  lie  is  first  examin- 
ed by  the  parly  which  produces  him;  after  which,  the  other  party 
is  at  liberty  to  cross  examine.  The  examination  is  in  open  court, 
in  the  preience  of  the  parties,  their  attornies,  and  counsel,  and  be- 
fore the  judge  and  jury,  who  have  thus  an  opportunity  of  observing 
the  understanding,  demeanor,  and  inclination  of  the  witnesses,  (n) 

Separately  It  may  often  be  advisable  to  examine  witnesses  separately,  and 

from  the  other  r    i       i         •  r  i         i  •  i  •  i     •  i        i 

witnesses.  ^^"-'^  °'  ^he  hearmg  ot  each  other,  with  a  view  to  obviate  tiie  danger 
of  a  concerted  story  among  ihe  witnesses,  and  to  prevent  the  influ- 
ence which  the  account  given  by  one  may  have  upon  another.* 
For  this  purpose,  the  court  will  order  witnesses  to  withdraw;  and 
if  any  witness,  who  has  been  ordered  to  withdraw,  continues  in 
court,  in  violation  of  such  order,  the  Court  will  not  afterwards  per- 
mit him  to  be  examined.  (2)  But  an  attorney  in  the  cause,  whose 
attendance  is  necessary  in  court,  to  instruct  his  counsel,  is  not  with- 
in this  rule.  (3)  (o) 


Leading 
qaestion. 


Leading  questions,  that  is,  such  as  instruct  a  witness  how  to  an- 
swer on  material  points,' (p)  are  not  allowed  on  the  examination  in 
chief;  [q)  for,  to  direct  witnesses  in  their  evidence  would  only  serve 
to  strengthen  that  bias,  which  they  are  generally  too  much  dis- 
posed to  feel,  in  favor  of  the  party  that  calls  them.  The  strictest 
observance  of  this  rule  is  essential  for  the  discovery  of  truth,  and 
the  due  administration  of  justice,  (r) 


Introductory.         Questions  which  are  intended  merely  as  introductory,  and  which, 
whether  answered  in  the  affirmative  or  negative,  would  not  be  cou- 


(1)  Howell  V.  Lock,  2  Cainpb.  14. 

(2)  Att.  Gen.  v.  Bulpit,  9  Price,  4. 


(3)  Pomeroy  v.   Baddeley,    1  Ry.   & 
Mo.  430. 


*  By  the  law  of  Scotland,  this  separate  examination  takes  place  in  all  criminal 
prosecutions.  The  rule  there  is,  that  if  a  witness  has  been  present  in  court  during 
the  examination  of  another  witness,  so  as  to  hear  his  evidence,  he  will  be  rejected. 
See  Hume's  Com.  on  Crim.  Law  of  Scotland,  2  vol.  365.     Burnet's  Treatise,  467. 


(wi)  See  Note  499,  p.  710.     (n)  See  Note  500,  p.  710.    (o)  See  Note  501,  p.  720. 
(p)  See  Note  602,  p.  722.     (5)  See  Note  503,  p.  723.     (r)  See  Note 604,  p.  723. 


Ch.  8.]       Of  the  Examination  of  Witnesses.  269 

elusive  on  any  of  tlie  points  in  ihe  cause,  are  not  liable  to  the  ob-  Leading 

jection  of  leading.     If  it  were  not  allowed  to  approacb  the  points  in  ^^^^ '""" 

issue  by  such  questions,  the  examination  of  witnesses  would  run 
to  an  innmoderate  length.  For  example,  if  tuo  defendants  are 
charged  as  partners,  a  witness  may  be  properly  asked,  whether 
the  one  defendant  has  interfered  in  the  business  of  the  other.  (1) 
This  is  not  a  leading  question:  for  though  he  may  have  interfered,  it 
will  not  follow,  that  he  has  by  this  alone  made  himself  liable  as  a 
partner.  Or,  if  a  witness,  called  to  prove  the  partnership  of  the 
plaintiffs,  is  not  able  at  the  moment  to  specify  the  several  names  of 
the  partners,  a  number  of  names,  containing  those  of  the  partners 
among  others,  may  be  suggested  to  the  witness,  for  the  assistance 
of  his  memory.  (2)  (s) 

If  a  witness  should  appear  to  be  in  the  interest  of  the  opposite  Unwillin-' 
party,  or  unwilling  to  give  evidence,  the  Court  will  in  its  discre-  ^""^^3. 
tion  allow  the  examination  in  chief  to  assume  something  of  the 
form  of  a  cross-examination.  Where  an  issue  has  been  directed, 
with  a  power  to  examine  one  of  the  parties,  it  will  be  competent 
to  the  counsel  of  the  opposite  party  to  cross-examine  him;  because, 
as  party,  he  must  be  considered  as  necessarily  adverse.  (3)*(0 

Itis  to  be  considered,  how  far  leading  questions  are  proper,  in  the  Leading,  pre- 
examination  of  a  witness  in  chief,  when  the  obiect  is  to  prove,  that  P^''''^^°'7  tp 

'        _  •>  '  '  contradicting  a 

another  witness,  who  has  been  examined  on  the  opposite  side,  has,  former  wit- 
on  some  former  occasion,  made  a  diflerent  and  contradictory  state-  "^^^' 
ment.     If,   for   example,  a  witness  on    his  cross-examination  were 
to  deny,  that  he  ever  gave  a   different  account  of  the  transaction, 
or  that,  in  conversing  upon  the  subject  with  a  third  person,  he  used 
certain  words  or  expressions  imputed  to  him,  would    it   be  compe- 

(1)  Nichoils  V.  Dowding  and  another,         (2)  Acerro  and    others   v.   Petroni,  I 
1  Starkie,  N.  P.  C.  81,  by    Lord    Ellen-     Staikie,  N.  P.  C.   100. 
borough.  (3)  Clarke  v.  Saffery,  1  Ry.    &    Mo. 

126. 


*  The  rule  adopted  by  the  courts  of  justice  in  Scotland,  on  the  subject  of  leading 
n  witness,  appears  to  be  much  stricter  than  in  this  country-  No  distinction  is  al- 
lowed, according  to  their  practice,  between  willing  and  unwilling  witnesses,  or  be- 
tween an  examination  in  chief  and  cross-examination,  (a) 

(a)  See  Burnet  on  Crim.  Law  of  Scotland,  p.  465. 


(»)  See  Note  505,  p.  724.     (<)  See  Note  506,  p.  724. 


270  Of  the  Examination  of  Witnesses.       [Cli.  8. 

Leading  (ent  to  the  counsel  on  ihe  opposite   side,  in  exaniinins;  that   third 

question.  .  .  ,  '  '  '  ° 

person   in  chief  as   his  witness,  to  ask   him,  in   the   first  instance, 

whether  the  former  witness,  in  conversing  with  hiin,  said  so  and 
so,  or  used  such  and  such  expressions?  This  form  of  putting  the 
question  is  certainly  not  unconimon,  and  fiequenily  passes  uiihout 
objection.  But  a  very  little  consideration  will  show,  that  such  a 
leading  question  is  irregular,  (it)  For,  in  the  first  place,  it  must 
evidently  be  quite  unnecessaiy  to  lead  the  witness  to  such  a 
length;  it  would  be  suft^icient  to  lead  him  up  (o  the  subject  of 
the  conversation;  and,  that  being  done,  the  most  regular  course 
would  be,  to  inquire  generally,  whqt  the  former  witness  said  or 
what  account  he  gave,  relative  to  the  transaction  in  question, 
thus  leaving  him,  as  in  fairness  he  ought  to  be  left,  to  the  use  of 
his  own  memory.  If  the  (Witness  has  a  distinct  recollection  of  the 
co:iversation,  and  of  the  representation  made  by  the  other  per- 
son, whose  account  is  now  disputed,  he  requires  only  to  have  his 
attention  directed  to  the  subject,  to  enable  him  to  speak  what  he 
knows:  if  he  has  not  that  distinct  recollection,  he  is  ill-qualified 
to  contradict  the  other  witness,  as  to  the  expressions  sup[)0sed  to 
have  been  used  by  him;  in  other  words,  he  is  incompetent  for 
the  pur|)ose  for  which  he  is  called.  The  plea  of  necessity,  there- 
fore, altogether  fails.  But  the  principal  objection  to  such  leading 
questions  appears  to  be,  that  they  suggest  the  desired  answer  so 
broadly  and  obviously,  that  a  witness  of  the  dullest  intellect  and 
weakest  n)emory  can  hardly  fail  to  take  the  hint,  and  may  easily 
shape  his  evidence,  if  he  is  so  disposed,  as  may  best  serve  the 
interest  and  wishes  of  the  party  who  calls  him.  In  effect,  the 
question  puts  into  the  mouth  of  the  witness  the  very  words, 
which  he  is  to  echo  back  either  in  the  affirmative  or  in  the  ne- 
gative; thus  supplying  a  forgetful  witness  with  a  false  memory, 
and  an  artful  witness  with  a  proiupt  and  concerted  answer.  Is 
there,  then,  any  thing  in  the  natuie  of  this  particular  case,  which 
ought  to  exempt  it  from  the  genend  rule  applicable  to  examinations 
in  chief.'*  On  the  contrary,  if  there  is  any  case,  in  which  that 
general  rule  against  leading  ought  to  be  strictly  maintained,  it  is 
the  one  now  under  consideration,  where  a  witness  is  called  for  the 
purpose  of  [)roving  the  account,  given  by  another  witness,  to  be  in- 
consistent with  some  former  statement,  sujiposed  to  have  been  made 
by  him.     Whether  the  question  at  issue,  between  the  two  witness- 

(«)    See  Note  507,  p.  726. 


Ch.  8. 1         Of  the  Examination  of  Witnesses.  271 

es,  is  a  quesiion  of  credit,  or  whether  it  is  to  be  considered  rather  Leading 

as  a  question  of  mere  memory,  leading  is,  in  eiihcr  point  of  view,  '^"^^  '"l! 

equally  objectionable.  If  it  is  a  question  of  memory,  the  only  fair 
way  of  trying  it,  is  by  allowing  the  witness  to  speak  for  himself 
unprompted,  as  his  own  memory  may  suggest.  If  the  question  is 
one  of  credit,  then  it  is  undoubtedly  due  to  the  person,  whose  vera- 
city is  impeached,  that  the  contradictory  statement,  supposed  to 
have  been  made  by  him,  should  be  distinctly  proved,  without 
the  aid  of  leading,  and  without  any  undue  influence.  Upon  the 
whole,  therefore,  the  most  unexceptionable  and  proper  course  ap- 
pears to  be,  to  ask  the  witness  who  is  called  to  prove  a  contradicto- 
ry statement  made  by  another  witness,  what  that  other  witness 
said  relative  to  the  transaction  in  question,  and  not  in  the  first  in- 
stance to  ask,  in  the  leading  form,  whether  he  said  so  and  so,  or 
used  such  and  such  expressions:  After  an  answer  has  been  given 
to  such  inquiry,  it  would  be  proper  for  the  purpose  of  making  the 
contradiction  more  cotnplete,  to  ask  whether  the  former  witness 
has,  or  has  not,  used  the  expressions  imputed  to  him.  (1) 

In  the  case  of  Courteen  v.  Touse,  (2)  Lord  Ellenborough  allow- 
ed the  counsel  for  the  defendant  to  put  a  leading  question  to  a  wit- 
ness called  by  him,  in  order  to  conliadict  a  witness  who  had  been 
called  by  the  plaintiff.  In  that  case,  one  of  the  witnesses  of  the 
plaintiff,  having  been  cross-examined  as  to  the  contents  of  a  letter, 
received  by  him  from  the  plaintiff  (which  letter  had  been  lost,)  and 
having  mentioned  in  his  cross-examination  some  particular  ex- 
pressions as  part  of  the  contents,  witnesses  were  called  on  the  part 
of  the  defendant,  to  speak  to  the  contents  of  the  same  letter,  and 
Lord  Ellenborough  allowed  the  defendant's  counsel  to  ask  one  of 
the  witnesses,  who  had  first  stated  all  he  recollected  of  the  letter, 
whether  it  contained  the  particular  words  and  expressions,  as  rep- 
resented by  the  plaintiff's  witness.  Here  the  object  of  the  exam- 
ination was  (not,  as  in  the  case  above  supposed,  to  show  that  a 
former  witness  had  given  two  diff  rent  representations  of  the  same 
transaction,)  but  to  ascertain  a  material  fact  in  the  case  by  means 

(1)    See     Edmonds     v.    Walter,     8         (2)  1  Campb.  43. 
Stark.  N.  V.  Q.  8. 


2/2  Of  the  Examination  of  Witnesses.         [Cli.  8. 

Cross-exarain- of  tlie  plaintiff's  letter;  and  as  the  plaintiff's  witness  had  stated 
J^ what  he  conceived  to  be  the  language  of  the  letter,  and  the  defend- 
ant's witness  had,  on  the  other  side,  given  his  account  of  its  con- 
tents, it  then  became  perfectly  reasonable  to  allow  the  question, 
whether  the  letter  contained  such  expressions,  as  represented  by 
the  witness  on  the  other  side,  or  any  to  that  effect.  Lord  Ellen- 
borough  held,  that  "after  exhausting  the  witness's  memory  as  to 
the  contents  of  the  letter,"  (not,  however,  by  leading  questions, 
but  by  examining  him  in  the  regular  manner,)  "  the  witness  might 
then  be  asked,  whether  it  contained  a  particular  passage,  recited  to 
him,  which  had  been  sworn  to  on  the  other  side;  otherwise  it 
would  be  impossible  ever  to  come  to  a  direct  contradiction." 

Cross-eiamin-  In  cross-examinations,  the  object  of  which  is  to  sift  evidence 
and  try  the  credibility  of  the  witnesses,  a  great  latitude  is  allowed 
in  the  mode  of  putting  questions.*  The  rule,  however,  is  still 
subject  to  certain  limitations.  A  witness  cannot  be  cross-exam- 
ined as  to  any  fact,  which,  if  admitted,  would  be  collateral, 
and  wholly  irrelevant  to  the  matter  in  issue,  for  the  purpose  of 
contradicting  him  by  other  evidence,  in  case  he  should  deny  the 
fact,  and  in  this  manner  to  discredit  his  testimony.  (1)  And  if 
Irrelevant  the  witncss  answer  such  an  irrelevant  question,  before  it  is  dis- 
quesuon.  allowed  or   withdrawn,   evidence  cannot   afterwards  be  admitted 

(1)  Spenceley  v.  de  Willot,  7  East,  lOS. 


*  Sir  William  Bliickstone  has  referred,  in  his  Commentaries  (B-  3,  Ch.  23,)  to  a 
well-known  passage  of  Quintilian;  in  which  that  niost  judicious  of  all  the  ancient 
rhetoricians  gives  some  excellent  hints  on  the  art  of  cross-examination.  "  Primum 
est,  nosse  lestem.  Nam  limidus  terreri,  slultus  decipi,  iracundus  concitari,  ambi- 
tio>us  inflari  potest;  prudens  vero  el  constans  vel,  tanquam  inimicus  et  pervicax, 
dimittendus  statim,  vel  non  interrogalione,  sed  brevi  inlerioculione  patroni,  refutan- 
dus  est:  aut  aliquo,  si  coniinget,  urbane  dicto  refrigerandus;  aut,  si  quid  in  ejus 
vitam  dici  poterit,  infamia  criminum  destruendua  Probos  quosdam  et  verecundos 
non  aspere  incessere  profuit;  nam  saspj,  qui  adversus  insectantem  pugnassent, 
modeslii  mitigantur.  Omnis  autem  interrogalio,  aut  in  caus\  est,  aut  extra  cau- 
sam.  In  caus!,  (sicut  accusatori  prEBcepimus,)  palronus  quoque  aliius,  nude  nihil 
suspecti  sit,  repelia  pcrcontatione,  priora  sequenlibus  applicando,  '^■S'\y:  eo  perducit 
honiiiies,  ut  invitis,  (jiiod  piosit,  extorquent.  Ejus  rei  sine  diibio  nee  di.<ciplina  ulla 
in  sclioiis,  nee  excrcitalio  tiaditiir:  et  naturali  magis  acumine,  aut  usu,  con  ingit 
hcEC  virtus.  *  *  In  primis  interrogalio  debet  esse  circumspecta ;  quia  muita 
contra  paironos  vensutJ  testis  saepe  respondet,  eique  prascipui  vulgo  favetur.  Turn 
verbis  quam  maxime  ex  nieriio  sumptis:  ut  qui  ros.-itur  (is  autem  est  sajpius  et  iui- 
peritus)  intelligat,  aut  ne  intelligere  se  negt,  quod  iulerrogantis  non  leva  frigua  est." 
Quintil.  Inst  Urat.  lib.  v.  c.  7- 


Ch.  8.]        Of  the  Examination  of  Witnesses.  .         273 

to  contradict  his  testimony  on    the   collateral   matter.  (I)    Such  a  C^fos*-«-'*a'n>n- 

course  would  often  produce  great   confusion  and    embarrassment. '. , 

The  simplest  issue  on  record   might  thus  branch  off  into  a  variety 
of  collateral  issues  perfectly  immaterial,  (r) 

In  the  application  of  this  rule  of  cross-examination,  the  principal  What  «  r«Ift. 
tiling  to  be  considered  will  be,  whether  the  question  is  irrelevant  to 
the  points  in  issue  between  the  parlies.  In  an  action  for  usury,  it 
would  be  entirely  immaterial  and  irrelevant,  to  cross-examine  the 
witness  respecting  other  contracts,  supposed  to  have  been  made  by 
the  defendant,  unless  the  witness  had  first  said,  that  the  contracts 
were  the  same;  and  that  was  the  point  in  the  case  of  Spencely  v. 
De  Willot.  (2)  To  inquire  of  a  witness,  in  cross-examination, 
whether  he  had  not  attempted  to  dissuade  another  witness,  exam- 
ined on  the  opposite  side,  from  being  present  at  the  trial,  has  been 
held  to  be  so  far  immaterial  to  the  issue,  that  if  the  witness  answer 
in  the  negative  (namely,  that  he  never  made  such  an  attempt,) 
evidence,  to  contradict  him  on  that  point,  would  not  be  admissi- 
ble. (3)  However  thai  may  be,  it  is  not  irrelevant,  on  the  trial  of 
a  prisoner,  to  cross-examine  the  witness  to  tiiis  fact,  whether  in 
consequence  of  being  charged  with  robbing  the  prisoner,  he  had 
not  said,  that  he  would  be  revenged  upon  him;  and,  if  the  wit- 
ness should  deny  havir)g  used  such  a  threat,  evidence  niay  be  giv- 
en to  contradict  him.  (4)  (to) 

If  a  witness  is  called  hv  a  party  irjerely  for  the  purpose  of  pro-  Witness,  pre- 
(lucnig  a  written  mstrument,  belongmg  to  the  parly,  vvliicn  is  lo  and  not  ■worn, 
be  proved    by  another  witness,  he  need    not   be  sworn;  and  if  not 

sworn,  he  will  not  be  subject  to  cross-examination.  (5)      If  a  wit-  Sworn  and  ex- 

•"  .  ,  ainined. 

ness  is  sworn,  and  gives  some  evidence,  (as  provmg  an  instru- 
ment,) however  formal  the  proof  iray  be,  he  is  to  be  considered 
a  witness  for  all  purposes  ;  and  this,  although  he  may  be  sub- 
stantially the   real  party  in  the  suit,  and  the  parly  on  the  record 

(1)  Harris  V.  Tippet,  2   Compb.  68S,     one    of   ihe    witnessos  for  the    pro^ecu- 
before  Lnwrence,  J.  tion,    had    endi-avoured    to    suborn    wit- 

(2)  7  East,  108.  nesses    to    give    falso    evidence    again.st 
(."?)   Harris  v   Tippet,  2  Campb.  637,     the  prisoner,  7  Howell,  St.  Tr.  1400. 

by  Lawrence,  J.     On    the  trial  of  Lord  (4)    Yewin's    rase,    2    Campb.    688. 

Stafford,    proof    waa    admitted,  on    the     n.  before  Lawrence,  J. 

part   of    the    prisoner,    that     Dugdale,         (5)  See  part  2,  ch.  8,  s.  2,  infra. 

(v)  S«e  Note  608,  p,  T26.     (u>)  See  Nota  509,  p.  72«. 

Vol.   I.  86 


274         •  Of  the  Examination  of  Witnesses.         [Cli.  8. 

Cross-examin;  a  mere  nominal  party.  (1)      If  he  is  sworn,  and  would  be  compe- 

'*'°"; tent  to  give  evidence  for  the  party  calling  him,  the  other  party  will 

Sworn,  and  not  in  strictness  be  eniiiled  to  cross-examine  him,  though  he  has  not 
been  examined  in  chief.  (2)  If  he  would  not  be  competent  to  give 
evidence  for  the  party  calling  him,  and  is  called  only  to  produce  a 
writing  in  his  possession,  and  on  being  called  is  sworn,  but  gives 
no  evidence  in  chief,  the  circumstances  of  having  sworn  this  in- 
competent witness  without  examining  him,  will  not  entitle  the  op- 
posite party  to  cross-examine.  (3)  [x) 

Witness,  after      j    •    ,.gpo,.tg(|  jq  i,ave  been  ruled   at  nisi  prius,  that  if  a  witness 
cros3-examina-  r  r         ' 

tion,  called  by  has  been  once  examined  by  a  party,  the  privilege  of  cross-exami- 
nation  continues  in  every  stage  of  the  cause;  so  that  the  other 
party  may  call  the  san)e  witness  to  prove  his  case,  and  in  examin- 
ing him  may  ask  leading  questions.  (4)  In  the  case  referred  to, 
the  witness  might  possibly  have  shown  a  strong  bias  in  favour  of 
the  first  party  that  called  him,  and  on  this  account  perhaps  a  great- 
er scope  was  granted  to  the  adverse  party,  than  is  usually  allowed. 
It  may  happen,  on  the  other  hand,  that  the  plaintiff  calls  a  witness 
unwillingly,  and  from  mere  necessity,  knowing  him  to  be  fa- 
vourable to  the  other  side:  in  such  a  case  to  allow  the  defendant, 
on  calling  him  up  afterwards  as  his  own  witness,  to  put  leading 
questions,  would  be  giving  hiai  an  unreasonable  advantage.  On 
the  contrary,  the  Court  might  perhaps  be  induced  to  invest  the 
plaintiff's  counsel  with  some  of  liie  powers  of  cross-examination, 
at  the  same  time  that  it  would  probably  oblige  the  defendant's 
counsel  to  treat  such  a  witness  strictly  as  his  own,  and  confine  him 
within  the  limits  of  an  examination  in  chief.  {\j) 

(1)  Morgan  v.  Bridges,  2  Starkie,  N.  by  the  jiislii:e's  clerk  ;  when  h  wa» 
P.  C.  314.  insisted    by    the     defendant's     counsel, 

(2)  R.  V.  Brooke,  2  Starkie,  N.  P.  that,  he  should  be  allowed  to  crosB- 
C.  473.  Philips  V.  Earner,  1  Esp  N.  examine  the  justice  who  had  produc- 
P.  C.  337.  In  Simpson  v.  Smith  and  ed  the  information  ;  but  Holroyd, 
another,  (an  action  for  maliciously,  J.  held,  that  this  could  not  be  done, 
and  without  prohablo  cause,  making  and  that  the  plaintiff's  counsel  mi"ht 
a  charge  of  felony  before  a  justice,  jirocced  to  prove  the  information  in  the 
against    the    plaintiff",   and    causing    him  regular  manner. 

to  be  apprehended,  tried  at    Nott.  Sum  (3)   Reed  v.    James,  1    Stark.   N.    P. 

Ass.  1822,  before  Holroyd,  J.)  the  plain-  C.  132. 

tiff's  counsel  having  called  upon  the  jus-         (4)   Dickenson  v.  Shee,    4  Esp.  N.  P. 

tice  to  produce  the  information  taken  by  C.  67. 

him,  which    was   accordingly  produced, 

was  proceeding  tq  prove  the   information 


(x)  See  Note  610,  p  730      {y)  See  Note  511,  p.  730, 


Cli.  8.]  Of  the  Examination  of  Witnesses.  21b 

Leading   ques(ioiis    ;ire  adiiiiltcd    in  the  cross-exaajiiialion  of  a  Cross-exami- 
,                     ,     ,                                            .                                II-     nation. 
Witness  where  niiicli   larger   powers   are  given    to  counsel   than  in 

ihe  orisrinal  examination,  (z)      Witnesses,  upon  the  cross-examina-  ^^^"'"S  '". 
~  ^    '  '  cros3-exami- 

lion,  may  be  led  inimediately  to  the  point,  on  which   their  answers  nation. 

are  required.  (1)      If  they  belrav  a  zeal  against   the  cross-exaniin-  ,,     .... 

.   .  '  .  .  .  Unwilling  wil- 

ing party,  and  sliovv   an  'unwillingness  to  speak   fairly  and   itnpar-  ness. 

lially,  they  may  be  questioned  with  minuteness  as  to  particular 
facts,  or  even  particular  expressions.  There  can  be  no  danger  in 
leading  too  much,  where  the  witness  is  obstinately  detertnined  not 
(o  follow.  On  the  other  hand,  instances  frequently  occur,  where  wiHing. 
the  witness  is  adverse  to  the  parly  who  calls  him,  and  leans  strong- 
ly to  the  other  side;  here  tiiere  must  be,  in  reason  and  justice, 
some  restrictions  as  to  ihe  form  and  manner  of  cross-examining. 
It  often  happens,  that  a  witness  in  cross-examination  waits  only  for 
a  hint,  to  shape  a  favorable  answer,  and  is  in  effect  the  witness 
of  the  cross-exaHjining  j)arty,  tiiough  technically  called  the  wit- 
ness of  the  opposite  side.  To  put  strong  leading  questions  to  such 
a  witness,  without  limitation  or  reserve,  is  substantially  preparing 
a  statement  for  him,  and  appears  to  be  inconsistent  with  justice  and 
a  fair  trial,  (a) 

An  instance  of  the  kind,  here  described,  occurred  on  the  trial  of 
Hardy  for  high  treason.  (2)  A  witness,  who  was  a  member  of  the 
same  corresponding  society  as  the  prisoner,  having  been  examin- 
ed on  the  part  of  the  prosecution,  and  having  made,  on  his 
cross-examinalion,  a  favorable  representation  of  the  political  opin- 
ions and  designs  of  the  societ}',  was  asked,  whether  some  of  the 
members  had  not  used  certain  expressions  on  the  subject  of  peti- 
tioning; upon  which,  the  Lord  Ch.  Justice  Eyre  reminded  the 
counsel,  that  he  could  not  put  the  vevy  words  into  the  witness's 
mouth;  that  this  was  contraiy  to  the  practice  of  his  coiu't  and  to 
his  opinion.  And  on  the  following  day,  (3)  when  the  subject  oc- 
curred again,  Mr.  Justice  Duller  refered  to  the  rule  laid  down  by 
the  Chief  Justice,  as  the  correct  rule  of  practice;  and  added,  "You 
may  lead  a  witness  upon  a  cross-examination,  to  bring  hiui  direct- 
ly to  the  point  as  to  the  answer;   but  not  to  go   the   length,  as  was 

(1)   See    Hardy's    case,  24    Howell's         (2)   24  Howell's  St.  Tr.   659. 
fit.  Tr  755,  by  Duller,  J.  (3)  24  Howell's  St.  Tr.  755. 


(2)  See  Note  612,  p.  731.     (a)  Sec  Note  613,  p.  731. 


276  Of  the  Examination  of  Witnesses.       [Ch.  8. 

Obligation  to     attempted  yesterday,  of  putting   into  the  witness's  tnouth  ihe  verj 

answer.  ,  .  •    i    i       •  i       i       i  •      ?> 

^ words,  which  he  is  to  echo  back  again.  ' 

Privilege  of  fi^g  privilesa  of  witnesses,  in  not   being  compellable  to  answer 

witness  in  not  i  o  ,  .  .  .  r,,.  , 

answering.  certain  question?,  is  a  subject  of  some  importance.  1  he  cases  here 
considered,  are  those,  in  which  the  witness  might,  by  answering, 
subject  himself  to  a  penalty  or  criminal  prosecution,  to  civil  pro- 
cess, or  to  any  kind  of  forfeiture:  and,  lastly,  where  the  question 
put  to  him  is  degrading  to  his  character. 

1.  Where  tho       First,  a  witness  cannot    be  compelled   to  answer  any    question, 

answer  niiglit         ,  •    ,    ,  i  i  •  i  ,  t  •     ! 

Bubject  topen-  which  has  a  tendency  to  expose  him  to  a  penalty,  or  to  any  kind 
allies, &c.  QJ-  punishment,  or  to  a  criminal  charge.  ( I)  (c)  On  an  indict- 
ment for  a  rape,  the  woman  is  not  obliged  to  answer,  whether  oa 
some. former  occasion,  she  had  not  a  criminal  connection  with  oth- 
er men  or  with  palicular  individuals;  (2)  nor  is  evidence  of  such 
criminal  intercourse  admissible.  (3)  On  an  appeal  against  an  or- 
der of  bastardy,  a  person  cannot  be  compelled  to  acknowledge  him- 
self thi  father  of  the  bastard  child:  but  there  is  no  objection  to  his 
being  sworn,  and,  if  he  chooses,  he  may  confess  the  fact.  (4)  In 
an  action  for  a  libel,  which  was  published  by  the  defendant  in  a 
voluntary  afiidavit,  sworn  extrajudiciiilly  before  a  magistrate,  it 
has  been  held,  that  the  magistrate's  cl  'rk  is  not  bound  to  answer, 
whether  he  wrote  the  affidavit,  and  delivered  it  to  the  magistrate; 
because,  it  is  said,  the  bare  copying  out  of  a  libel  is  criminal.  (5) 
An  accomplice,  who  is  admitted  to  give  evidence  against  his  asso- 
ciate in  guilt,  though  bound  to  make  a  full  and  fair  confession  of 
ih.e  whole   truth  respecting    the  subject-matter  of  the  prosecution, 

(I)  Sir  J.    FrijnJ'a  ca^s,    4    St.    Tr.  tliiy   ara   required    to     give     evidence; 

6,    S    C.     10    Howell's    St.    Tr.    109).  such  :n   st.    4>  G.  3,  c   126,  in  llu  im- 

Lord     iMicclosiield'.s    case,    6    St.    Tr.  peacliinent  of    Lord    Melville;     and    si. 

649,  S.   C.      16   [lowell's  St.  Tr.  1149.  i,    2    G     4,    c.  21,   on    ihe  inquiry    re- 

R.    V.    Ld.  G.  Gordon,  2    Doug     59-3.  spaciting  eleRiions  at  Graiiipound 

Title  V.  Grevet,    2    Ld     Rayni.    103S.  (2J  Hodgson's   case,    1  Russ.  &    Ry. 

16    Ves.   jun.    242.     Hardy's    c;ise,    24  Cr.     C.     211.       Dodd     v.      Norris,     S 

Howell's    St.    Tr.    720.      Trial    of    De  Campb.    619. 

Berenger    and    others,    by    Gurnev,    p.  (3)    Hodgson's  case,    1    Rubs.   Si    Ry. 

195.       ('ales    v.     Hardacre,     3     Taunt.  Cr.    C.  211. 

424.     Parkhurst  V.   Lowien,  2    Svvanst  (4)     R.    v.   St.    Mary's,  NoUinghanfi, 

Lh.    R.  ?.16.     See    also   16  C.   2,  s.    1,  13    East,  53,  n. 

c.  12,  8.  4,  and    Preanib.    of  st.  46    G.  (5)      .Maloney     v.     Bartloy,       before 

2,   c.    37.     Acts    of  indemnity    to   wit-  Wood,    B  ,  3  Campb.  210       A    bill    of 

nesses    are    often     passed,     to    absolve  exceptions     wan     tpnderad,    bnt     aftar- 

thein    from    penalties    and   prosecutions,  wards  dropped. 

en    nccount   of    transaclioni    of    which 

(/>)  See  Note  514,  p  784.     («r)  B««  Note  516,  p  784. 


C"h.  8.]  Of  the  Examination  of  H'itnesscs.  277 

is  not  bound  to  answer  with  respect  to   his  share  in  otlier  offences,  Obligation  t» 

,       ,  .  r        I        •  answer. 

in  which  he  was   not  concerned   witli   the   prisoner;  lor  lie  is  not 

prelected  from  a  prosecution  for  such  ofienccs.  (!)((/) 

Secondly,   as   to  the  case,   where  the   witness,    by    answering  2.  Where  ih« 

•'  '  '  •  ir      •  I         answer  iiiiglit 

might  subject  himself  to  a  civil  action,  or  charge  himself  with  a  subject  to  * 
debt.  Considerable  doubts  have  been  entertained  upon  this  point  ;*^"'' 
some  judges  being  of  opinion,  that  lie  is  not  compellable  to  answer 
such  questions,  and  others  being  of  a  contrary  opinion.*  ^J'o 
settle  the  rule  of  law  on  this  subject,  the  sla'.  45  G.  3,  c.  o7,  was 
introduced,  which  declares,  that  a  witness  cannot  legally  refuse 
to  answer  a  question,  relevant  to  the  matter  in  issue,  (the  an- 
swering of  which  has  no  tendency  to  accuse  himself,  or  to  ex- 
pose him  to  penalty  or  forfeiture  of  any  nature  whatsoever,)  on 
the    ground,  that  the  answering  of  such  question  may   establish, 

(I)   West's  cas2,  supra,  p.  3S,    n. 


*  This  subject  was  much  discussed,  in  the  course  of  tlie  impeaclinr.ent  against 
Lord  Melville,  and  referred  to  the  Judges  for  their  opinion.  The  only  report 
which  the  author  h:is  seen,  of  these  proceedings,  is  that  to  be  found  in  the  sixth 
volume  of  the  PiirliamenlMry  Debates;  from  which  the  following  brief  account  is 
extracted.  A  bill  had  been  brougiit  into  the  House  of  Lords,  to  indemnify  wit- 
nesses from  criminal  prosecutions  and  civil  process,  to  which  they  nnglit  be  e.\- 
posed  by  giving  evidence,  'i  he  indemnity  from  crimin-il  prosecution  was  agreed 
to;  but  some  doubts  arising  wiih  respect  to  the  indemnification  from  civil  process, 
Beveral  questions  were  referred  to  the  .Fudges,  with  the  view  of  ascertaining,  whelli- 
er  persons  were  legally  justified  in  refusing  to  answer  questions,  the  result  of  which 
might  sul)ject  them  to  a  civil  suit.  («  vol.  Pari.  Deb.  p.  167.)  Three  question* 
were  proposed;  the  object  of  the  first  and  second  was  to  ascertain,  whether  a  wit- 
ness could  demur  to  answer  a  question,  the  result  of  which  might  render  him  liable 
to  an  action  for  debt,  or  to  a  suit  for  the  recovery  of  the  profits  of  public  money; 
the  object  of  the  third  was  to  ascertain,  whether  a  witness,  wiio,  on  making  a  full 
and  fair  disclosure,  was  to  be  excu.sed  from  certain  debts,  could  be  legally  ob- 
jected to,  on  the  ground  of  bis  being  interested.  (P.  222  )  The  Lord  Ch.  Justice 
Mansfield,  who  delivered  the  opinion  of  the  judges,  stated,  that  upon  the  two 
first  questions  tlioy  were  divided  in  opinion;  and  that  on  the  third  question  they 
were  unanimously  of  opinion,  that  a  witness,  in  the  situation  described ,  could  not 
be  rejected  on  the  ground  of  interest,  since  whatever  might  be  ofVered,  on  condition 
of  his  making  a  f.iir  and  full  disclosure,  could  legally  male  no  difibrence  with  re- 
spect to  his  evidence,  the  witness  being  bound  by  his  oath,  by  law,  Uiorality,  and 
honour,  to  declare  the  truth,  the  whole  liutb,  and  nothing  but  the  truth.  (P.  223.) 
The  House  of  Lords  then  c.illed  upon  the  Judges  to  deliver  their  opinions  seialim 
on  the  proposed  questions.  (P.  226,  227.)  The  Judges  accordingly  delivered 
their  opinions  in  order.  Four  of  the  Judges  (Lord  Ch.  Justice  Mansfield,  Grose, 
J.,  Rooke,  J  ,  and  Thompson,  J.)  were  of  opinion,  that  a  witness  was  not  compel- 
lable to  answer  any  question,  the  answer  to  which  might  subject  him  to  a  civil  ac- 
tion: the  other  Judges,  together  with  the  Lord  Chancellor,  and  Lord  Eldon,  wer« 
of  the  contrary  opinion.     (P.  234,  245  ) 


(d)  Seo  Note  516,  p.  7»4. 


*-278  Of  the  Examinalion  of  Witnesses.  [Cli.  0. 

Obligation  to    or  (eod  to  establi:^li,  that  lie  owes  a  debi,  or  is  oilierwiso  subject  to 

answer.  ...        .       ,   , 

a  Civil  suit,  (e) 

The  right,  which  ilie  parlies  to  a  suit  have,  to  refuse  answering 
any  question,  is  not  in  any  degree  affected  by  this  statute;  and 
therefore  on  a  question  of  settlement,  a  rated  parishoner  is  not 
compellable  by  the  adverse  parish  to  give  evidence,  as  he  is  direct- 
ly interested  as  party  to  the  appeal,  and  does  not  come  within  tho 
words  or  meaning  of  the  act.  (l)(  J) 

3.  Where  the  Thirdly,  a  witness  is  privileged  from  answering  any  question, 
subjectio  for-  the  answer  to  which  might  subject  him  to  a  lorfeiture  of  his  es- 
teiture.  \di\e.      The  declaratory  statute,  above  referred  to,   iuijiiies  that  a 

witness  may  legally  refuse  to  answer  a  question,  which  has  a  ten- 
dency to  expose  him  to  a  forfeiture  of  any  nature  whatsoever.  At 
the  time  of  passing  that  act,  when  the  general  privileges  of  wit- 
nesses were  much  discussed,  it  was  proposed  to  insert  in  the  act  a 
proviso,  that  no  mortgagee,  or  bona  fide  purchaser,  or  possessor  of 
an  estate,  should  bo  compelled  to  answer  any  question,  the  answer- 
ing of  which  might  probably  lend  to  defeat  his  title,  or  incur  a  for- 
feiture of  his  estate.  This  [)roviso  was  afterwards  withdrawn. 
However,  several  of  the  judges,  who  on  that  occasion  were  of  opin- 
ion, that  the  liability  to  a  civil  action,  or  to  a  pecuniary  charge, 
ought  not  to  exempt  a  witness  from  answering  questions,  yet  con- 
sidered the  probabihty  or  danger  of  incurring  a  forfeiture  of  estate 
to  be  a  legal  ground  of  exemption.  And  it  is  an  established  prin- 
ciple in  courts  of  equity,  that  a  party  is  not  bound  to  answer,  so  as 
to  subject  himself  to  pains  or  penalties,  or  to  any  kind  of  punish- 
ment, or  to  any  forfeiture  of  interest.  (2)  (  ^) 

4.  VVhere  tho        ^\\e  last  case,  to  be  mentioned  on  this  subject,  is,  where  a  ques- 

nnswer  mi"lit      .         .  ,       ,       ,  i  •    i     i  i'  i  i 

decade  the      tiou  IS  asked,  tlie  answer  to    which  lias  a   direct  tendency  to  de- 
witness's  char- grade  the  witness's  character,  though    it   may   not  subject  him  to 
a  criminal    prosecution.      If  a   witness,   for  instance,   were  to  be 
asked,  whether  he   had   not   suffered   some  infamous   punishment, 
or  ifanv  other  question  of  the  same  kind   were  asked,    imputing 

(1)     R.    V     Inhabitants    of  Woburn,  (2)  The  cases  upon   this    subject    ai« 

10  East,  395.  See  54  G.  3,  c.  170,  collected  in  Mitford's  Treat,  on  Chan, 
•tated  supra,  p.  72.  Pleadings,  157 — 163. 


(e)  S«e  Note  517,  p.  739.     (/)  See  Note  518,  p.  741.     (g)  See  Note  619,  p.  741. 


Ch.  8.1         Of  the  Examination  of  Witnesses.  279 

guilt  to  the  witness   in  some    past  transaction,  and   not  relevant  to  Obligation  to 

the  matters  in  issue,  would  he  be  compellable  to  answer,  (/i)      The ; 

inquiry  here  made,  it  is  to  be  observed,  relates  only  to  such  ques- 
tions as  are  not  relevant  to  the  matters  in  issue;  for  if  the  transac- 
tion,"to  which  the  witness  is  interrogated,  form  any  part  of  the  is- 
sue, he  will  be  obliged  to  give  evidence,  however  strongly  it  may 
reflect  upon  his  character,  (i) 

There   seems  to  be  no  reported   case,  in    which    this   point   has 
been  solemnly  determined;  and,  in  the  absence  of  all  express  au- 
thority, oiiinions  have   been  much   divided.      The  advocates  for  a  General  rea- 
.  ....  .       soning. 

compulsory   power  in  cross-examination  maintain,  that,  as  parties 

are  frequently  surprised  by  the  appearance  of  a  witness  unknown 
to  them,  or,  if  known,  entirely  unexpected,  without  such  power 
they  would  have  no  adequate  means  of  ascertaining  what  credit 
is  due  to  his  testimony;  that  on  the  cross-examination  of  spies,  in- 
formers, and  accomplices,  this  power  is  more  particularly  necessa- 
i<y;  and  that  if  a  witness  may  not  be  questioned  as  to  his  charac- 
ter at  the  moment  of  trial,  the  properly  and  even  the  life  of  a  party 
must  often  be  endangered. — Those,  on  the  other  side,  who  main- 
tain, that  a  witness  is  not  compellable  to  answer  such  questions, 
argue  to  the  following  efiect.  They  say,  the  obligation  to  give 
evidence  arises  from  the  oath,  which  every  witness  takes;  that  by 
this  oath  he  binds  himself  <  nly  to  speak  touching  the  niatrers  in 
issue;  and  that  such  particular  facts  as  these — whether  the  wit- 
r;oj-s  l;as  been  in  gaol  for  felony  or  suffered  some  infamous  punish- 
ment, or  the  like, — cannot  form  any  |)art  of  the  issue,  as  a[)pears 
evident  from  this  consideration,  that  the  party,  iigainst  whom  the 
witness  is  called,  would  not  be  allowed  to  prove  such  particular 
facts  l)y  other  witnesses.  They  argue,  further,  that  it  would  be  an 
extreme  grievanc  e  to  a  witness  to  be  compelled  to  disclose  pasi 
transaciioi's  of  hi?  life,  which  may  have  since  been  forgotten,  and 
to  expose  hi-;  chaiacter  afresh  to  evil  report,  when,  perhaps,  by  his 
subscq'.ient  conduct,  he  may  have  recovered  the  good  opinion  of  the 
world:  that  if  a  witness  is  privileged  from  answering  a  question, 
though  relevant  to  the  matters  in  issue,  because  it  may  tend  to 
subject  hiru  to  forfeittne  of  property,  with  much  more  reason  ouglit 
he  to  be  excused  from  answering  an  irrelevant  question  to  the  dis- 
paragement and   forfeiture   of  his   character:  that  in   the   case  of 


(A)  See  Nolo  620,  p.  741.     (t)  See  Note  62!,  p.  742 


280  Oftht  ExQmination  of  I'Vitnesses.         [Ch.  8. 

Obligation  !•     nccomplices,  ill  wliicli  lliis  compulsory  power  of  cross-examination 

^^^^j is  iliought  to   bo  more    pariiculaily   necessary,  the   power   may  be 

properly  conceded  to  a  certain  extent,  because  accomplices  stand 
in  a  peculiar  situation,  being  admitted  to  give  evidence  only  under 
ibe  implied  condition  of  making  a  full  and  true  confession  of  tho 
whole  trutlj;  but  even  accon)plices  are  not  to  be  questioned,  in 
their  cross-examination,  as  to  the  other  oflences,  in  which  they  hava 
not  been  concerned  with  the  prisoner:  (1)  and  with  respect  to 
other  witnesses,  the  best  course  to  be  adopted,  both  in  point  of  con- 
venience and  justice,  is  to  allow  the  question  to  be  asked,  at  the 
same  time  allowing  the  witness  to  shelter  himself  under  his  privi- 
lege of  refusing  to  answer,  and,  if  he  refuses,  to  leave  it  to  the  jurjr 
to  draw  iheir  own  conclusion  as  to  his  motives  for  such  refusal. 

Anthoriiie*.  Although  there   appears  not  to   be  any  express   decision  on  tho 

point,  whether  a  witness  is  compellable  to  answer  questions  degrad- 
ing to  his  character,  yet  several  opinions  have  been  pronounced  by 
judges  of  great  authority,  from  which  it  may  be  collected,  that  the 
witness  is  not  compellable  to  answer  such  questions.  They  are  as 
follows: 

Witness  not  1 .  In  Cook's  case,  reported  in  the  State  Trials,  (2)  where  a  ques- 

compellable  to  jj^j^   arose,  whether  a   juryman,  who  had    been   challenged,  njisihl 

■nswer.  .  o       ^         _ 

be  examined  as  to  his  having  asserted  the  guilt  of  the  prisoner 
before  the  trial,  C.  J.  Treby  said,  "You  may  ask  upon  the  voir 
dire.,  whether  he  has  any  interest  in  the  cause,  nor  shall  we  deny 
you  liberty  to  ask,  whether  he  is  qualified  according  to  law  by 
having  a  freehold  of  sufficient  value;  but  that  you  may  ask  a 
jury  (3)  or  icitness  every  question  that  will  not  make  him  crimi- 
nous, that  is  too  large.  J\Ien  have  been  ashed^  whether  they  have 
been  ccnvicled  and  pardoned  for  felony^  or  whether  they  have  been 
whipped  for  petty  larceny^  but  they  have  not  been  obliged  to  ansicery 
for  although  their  answer  in  the  affirmative  will  not  make  them 
criminal,  nor  subject  them  to  punishment,  yet  they  are  matters 
of  infamy,  and  if  it  be  an  infamous  things  that  is  enough  to  pre- 
serve a  man  from  being  bound  to  answer.     A  pardoned  man  is  not 

(1)  See  West's  case,  supra,  p   38,  n.     all's  St.  Tr.  S34,  S.  C.     1  Salk.  168. 

(2)  4  St.    Tr.  748,  S.    C.     13   How-         (8)  Sea  also  Co.  Litt.  168,  b. 


Ch.  8.]         Of  the  Examination  of  Witnesses.  281 

guilty:  his  crime   is  purged.     But   merely  for  the   reproach  of  it,  ^l^^'i^^'o" '" 

,                          ,  •                                         •             ,,.,,,     answer. 
it  shall  not  be  put  upon  him  to  answer  a  question^  ivhereon  he  icill  be 

forced  to  forswear  or  disgrace  himself.  So,  persons  have  been  excused 
from  answering,  xohcther  they  have  been  committed  to  brideivell  as  pil- 
ferers or  vagrants,  ^'c;  yet  to  be  suspected  is  only  a  misforluno  and 
shame,  no  crime.  The  like  has  been  observed  in  otiier  cases  of 
odious  and  infamous  matters,  which  are  not  crimes  indictable." 

2.  On  the  trial  of  Sir  John  Freind  for  high  treason,  (1)  a  ques- 
tion arose  as  to  the  propriety  of  asking  a  witness  whether  he  was 
a  Roman  Catholic.  Tlie  Court  determined,  that  the  question 
could  not  be  asked,  as  the  witness  might,  by  his  answer,  subject 
himself  to  several  penalties.  C.  J.  I'reby,  on  that  occasion,  said, 
"  No  man  is  bound  to  answer  any  questions,  thatwill  subject  him  to 
penalties  or  to  infamy.  If  you  should  ask  him,  whether  he  were  a 
deer-stealer,  or  whether  he  were  a  vagabond,  or  any  other  thing 
that  will  subject  him  to  punishment  either  by  statute  or  by  com- 
mon law,  whether  he  be  guilty  of  a  petty  larceny,  or  the  like,  the 
law  does  not  oblige  him  to  answer  any  such  question." 

3.  In  Layer's  case,  (2)  on  an  indictment  for  high  treason,  the 
prisoner  insisted,  that  a  witness  should  be  examined  on  the  voire 
doire,  whether  he  had  a  promise  of  pardon,  or  some  other  reward, 
for  swearing  against  him.  The  point  was  argued  by  his  counsel, 
and  overruled  by  the  Court.  The  Lord  Ch.  J.  Pratt  said,  "  You 
see,  the  most  you  can  make  of  it  is,  that  it  is  an  objection  to  his 
credit;  and  if  it  goes  to  his  credit,  must  he  not  be  sworn,  and  his 
credit  left  to  the  jury.-*  He  must  be  examined  as  a  legal  witness. 
But  if  this  man,  under  expectation  or  promise  ofapardon,  comes  here 
to  swear  that  which  is  not  true,  and  you  uwuld  ask  him  to  that,  he  is  not 
obliged  to  answer  it.  J^obody  is  to  discredit  himself,  but  alwnys  to 
be  taken  to  be  innocent,  till  it  appear  otherwise.  1^  they  who  ask 
the  question,  insinuate  any  thing  like  that,  (namely,  tliat  the  witness 
can  give  no  evidence  except  what  is  false,)  it  ought  to  have  an  an- 

(I)  4  St.    Tr.  259,   S.  C.     II    How-         (2)  6  St.    Tr.  259,   S.  C.     16   How- 
ell's  St.   Tr.    1331.      This    opinion    of    ell's  St,  Tr.  161. 
Chief   Justice     Treby     was     approved 
of  by    Lord   Ellenborough    in   iho    case 
of  R.  V.  Lewis,  1  Esp.  N.  P.  C.  225. 

Vol.   I.  36 


282  Of  the  Examination  of  Witnesses.         [Ch.  8. 

Obligation  to     sxDtr;  but  If  he  has  a  promise  of  pardon,  if  he  elves  true  evidence, 
answer.  .....  ' 

-^ >t  IS  no  objection   to  his   being   a  witness,  or  to   his  credit."     And 

Mr.  Justice  Fortescue  Aland,  referring  to  a  case  cited,  where  a 
similar  point  was  made  and  overruled,  said,  "  The  reason  the 
Court  gave,  (that  it  was  improper  to  ask  this  question  on  the  voire 
dire,)  was,  that  if  he  had  this  promise,  such  promise  was  made 
either  to  speak  the  truth,  or  to  speak  a  falsehood;  if  it  were  to  give 
just  and  true  evidence,  there  was  no  harm  in  it;  and  if  it  was  a  prom- 
ise of  pardon  for  speaking  what  was  not  true,  the  witness  was  not 
bound  to  answer  that  question.'''' (j) 

not^inegal'*'"  Whether  questions,  of  such  a  description,  may  not  be  legally 
asked,  is  a  very  different  point  from  that  before  considered,  wheth- 
er the  witness  is  compellable  to  answer.  It  may  be  just  to  al- 
low a  witness  the  privilege  of  not  answering  in  certain  cases  ; 
but  that  the  party,  against  whom  the  witness  appears,  shall  not 
be  allowed  to  ask  the  question,  and  force  him  to  his  privilege,  is 
a  proposition,  which,  if  carried  into  practice,  might  often  be  at- 
tended with  dangerous  consequences.  There  are  two  nisi  prius 
decisions,  in  which  it  seems  to  have  been  held,  that  a  question, 
the  object  of  which  is  to  degrade  the  witness's  character,  cannot 
be  properly   asked.*     However,  there   are  many   other  cases,  in 

*  R.  V.  LewJs,  4  Esp.  N.  P-  C.  225.  IMacbride  v.  Macbride,  lb.  242.  The  case 
of  R.  V.  Lewis  was  at  a  prosecution  for  an  assault.  The  report  states,  that  the 
prosecutor,  vho  tvas  a  common  informer,  and  a  man  of  suspicious  character,  was 
asked,  in  the  course  of  the  cross-examination,  vhether  he  had  not  been  in  the  house 
of  correction;  Lord  Ellenborougli,  it  is  said,  interposed,  and  stated  thai  this  question 
should  not  be  asked.  The  Chief  Justice,  in  support  of  this  opinion,  referred  to  the 
rule  laid  down  by  Ch.  Justice  Trehj,  before  mentioned,  that  a  witness  is  not  bound 
to  answer  any  question,  the  object  ofvhich  is  to  degrade  or  render  him  infamous  ; 
and  added,  that  be  thought  the  rule  ought  to  be  adhered  to.  Now,  it  seems  proba- 
ble, from  the  reasoning  of  Lord  Ellenborough,  and  from  the  former  part  of  the  re- 
port, stating,  that  the  w'itness  was  a  common  infortner  and  of  a  suspicious  charac- 
ter, (which  shows,  that  questions,  reflecting  upon  his  character,  had  been  already 
asked  without  objection,  and  hud  been  also  answered,)  it  seems  highly  probable 
from  these  circumstances,  that  the  witness,  on  being  questioned  as  to  the  particu- 
lar fact  of  his  iiaving  been  in  a  house  of  correction,  either  appealed  to  the  Court  for 
protection,  or  showed  an  unwillingness  to  answer;  and  if,  after  this,  the  question 
had  been  repeated,  it  might  be  thought  nece.-ssary  to  interpose,  and  intimate,  that 
the  witness  could  not  be  compelled  to  answer,  and  that  the  question,  therefore, 
ought  not  to  be  pressed;  this  shows  the  application  of  the  rule,  which  Lord  Ellen- 
borough  cited  as  having  been  laid  down  by  Ch.  Justice  Treby,  as  to  the  privilege 
of  the  witness  in  not  answering,  which  would  have  been  cited  prematurely,  if  the 
single  point  in  discussion  were,  whether  the  question  could  in  the  first  instance  be 
legally  asked.     The  observation  here  made,  will,  perhaps,  have  more  weight,  when 

(;■)  See  Note  522,  a.  p  74S. 


Ch.  8.]       Of  the  Examination  of  Witnesses.  2<M 

which  qiieslions  of  this  descriptioii  have  benn  allowed  by  the  Ohlization  to 
Court.  (1)  The  opinion  of  Ch.  Justice  Treby,  aiui  (he  other  Judg-  ^"*^^'^' 
es,  before  cited,  upon  the  point,  wiieiher  the  witness  is  compellable 
to  answer,  imply,  that  there  is  no  objection,  in  point  of  law,  to  the 
asking  the  question;  but  that  tlie  objection  arises  in  a  later  stage 
of  the  cross-examination,  namely,  when  an  attempt  is  made  to 
compel  him  to  answer.  They  are  as  strong  auihoriiies  for  the  one 
position  as  for  the  other.  The  same  observation  may  be  made  al- 
so with  respect  to  the  statute  before  referred  to;  which  seems  to 
imply,  that  there  is  no  legal  objection  to  a  question,  which  may 
even  subject  the  witness  to  forfeiture,  although,  if  the  question  is 
asked,  he  may  legally  refuse  to  answer.  (2)  In  addition  to  this,  it 
may  be  observed,  the  common  practice  of  courts  of  justice,  before 
the  most  approved  Judges,  will  abundantly  furnish  instances  of 
such  questions  being  asked,  and  not  being  disallowed  as  contrary 
to  the  rules  of  law:  and   it  is  difficult  to  see,  how  a  question  can 

(1)  In  the  case  of  R.  v.  Edwards,  2  Stark.  N.  P.  C  155.  2  Campb. 
4  T.  R.  440,  on  an  application  to  bail  63S,  S.  C.  The  following  case  occur- 
a  prisoner,  the  Court  allowed  the  red  at  the  sittings  in  K.  B.  after  liil. 
counsel  to  ask  one  of  the  bail,  whether  Term,  1818.  In  the  case  of  Frost  v. 
he  had  stood  in  the  pillory  for  per-  Ho'loway,  Mr-  Scarlet,  in  cross-ex- 
jury;  the  question  was  objected  to,  amining  a  witness,  asked  him,  whelli- 
but  the  objection  was  overruled.  In  er  he  had  not  been  tried  for  theft  at 
Watson's  case,  for  high  treason,  ques-  Reading.  The  witness  refused  to  an- 
tions  of  this  description  were  fre-  swer,  and  appealed  to  Lord  Ellenbo- 
quently  asked;  and  it  may  be  inferred  rough,  whether  he  was  bound  to  an- 
from  the  opinions  of  the  judges,  on  swer  such  a  question.  Lord  Ellen- 
an  argument  in  that  case,  that  such  borough  said,  "  If  you  do  not  answer 
questions  are  regular.  See  Gurney's  the  question,  I  will  commit  you  ;"  ad- 
Report  of  Watson's  Trial,  288 — 291.  ding,  "  you  shall  not  be  compelled  to 
An  instance  occurred  also  in  Lord  say  whether  you  were  guilty  or  not." 
Cochrane's  trial,  p.  419,  by  Gurney;  IMS.  note  communicated  by  Mr.  Gur- 
and  in  Hardy's  case,  24  Howell's  St.  ney,  who  was  counsel  in  the  cause. 
Tr.  726.  See  also  H  East,  311.  (2)  46  G.  3,  c.  37,  supra,  p.  277. 
Harris   v.   Tippet,  cited    by   Abbott   J. 


it  is  remembered,  that  Lord  Eilenborough  continually  permitted  such  questions  to 
be  asked  without  the  slightest  disapprobation,  a  fict  well  known  to  all  who  are  ac- 
quainted with  the  practice  of  that  great  master  of  the  law  of  evidence.  Alacbride 
V.  Macbride,  was  an  action  of  assumpsit;  a  woman  having  given  evidence  of  the 
plaintiff's  demand,  was  asked  on  the  cro.ss-e.\amiiiation,  whether  she  did  not  live 
in  a  state  of  concubinage  with  the  plaintiff,  when  Lord  Alvanley  interposed,  and  is 
reported  to  have  said,  he  thought  questions  as  to  general  conduct  might  be  asked, 
but  not  such  as  went  immediately  to  degrade  the  witness.  On  the  tiial  of  O'Coig- 
ley  and  O'Connor,  a  question  was  asked  iu  cross-e.xamination,  which  threw  an  im- 
putation on  the  witness,  and  the  counsel  was  not  allowed  to  repeat  the  question  or 
follow  it  up  by  another;  but  here  the  witness  had  first  appealed  to  the  Court  for 
protection.     (26  Howell'a  St.  Tr-  1353.) 


284  Of  the  Examination  of  Witnesses.        [Cli.  8. 

Privileged        properly  be  deemed  illegal,  when,  if  the  witness  chooses  to  answer, 

conimiuii-  i       i        u      i  •        i  •  i  ,,  \ 

cations.  bis  answer  n:iiisl  undoubtedly  be  received  as  evidence(/i;). 

Answer,  if  Assuming,  that  a  question  is  not  irregular,  merely  from  its  ten- 

made,  con-         ,  1  >        I  •  •(       1  1     I  1  • 

elusive.  dency  to  degrade   the  witness  s  character,  and  that  the  witness  is 

not  compellable  to  answer,  yet,  if  he  chooses  to  give  an  answer, 
the  party,  who  asks  the  question,  will  be  bound  by  his  answer, 
and  cannot  be  allowed  to  falsify  it  by  his  evidence-  "  You  may 
ask  the  witness,"  said  Lord  Ellenborough  in  Watson's  case,(l) 
whether  he  has  been  guilty  of  such  a  crime  (improperly  asking 
him  in  a  degree,  because  you  are  calling  upon  him,  upon  the  sanc- 
tion of  his  oath,  to  answer  that  which  he  is  not  bound  to  answer, 
for  no  man  is  bound  to  criminate  himself);  but  if  from  a  desire  to 
exculpate  himself  from  the  imputation  of  crime,  he  gives  an  an- 
swer, it  has  been  held  by  many  of  our  Judges,  and  I  never  knew 
it  ruled  to  the  contrary,  that,  having  put  such  question,  you  must 
be  bound  by  the  answer.  The  court  is  not  a  court  to  try  a  collat- 
eral question  of  crime,  and  it  would  be  unjust  if  it  were;  for  how 
can  the  party  be  prepared  with  a  case  of  exculpation,  or  with  an 
answer  to  any  evidence  which  may  be  produced  to  charge  him? 
there  is  no  possibility  of  a  fair  and  competent  trial  upon  that  sub- 
ject, and,  therefore,  in  no  instance  is  it  done."  (Z) 

Privileged  There  is  another  privilege,  relating  to  certain  kinds  of  informa- 

communica-  jJqj^  jj^  ^jjg  l^iowledge  of  a  witness,  which  courts  of  iustice  will 
not  permit  him  to  disclose.  This  is  not  the  privilege  of  the  wit- 
ness, but  may  be  justly  called  a  public  privilege,  and  is  observed 
by  courts  of  justice  on  a  principle  of  public  policy,  and  from  re- 
gard to  public  interests. 

A      t   f  ffi  ^^^  ^^^^  ^'^'^^  °^  Hardy  for  high  treason,  a  witness,  who  had  been 

cer.  employed  by  an  ofScer  of  the  executive  government  to  collect  in- 

formation at  a  meeting  of  one  of  the  corresponding  societies,  was 
not  allowed  to  disclose  the   name  of  his  employer,  or  the  nature 

(1)  Guniey's  Rep.  2  vol.  28S.     32  Howeil's  St.  Tr.  490,  S   C. 

(&)  See  Note  522, 1).  p.  747.     (/)  See  note  523,  p.  748. 


CI).  8.]         Of  the  Examination  of  Witrifsses.  285 

of  the  connection  that    bad    subsisted    between    himself   and    the  Privileged 

com  mum- 
officer.   (1)  cations. 

Another   witness,  in  the  course  of  t'.ie  same  trial,  bad  made  re-  Agent  of 
r  •  ■  r    y  J-  r  r        pol'ce. 

ports,  from  tune  to  tmie,  oi  the  j)roceedmgs  ot  some  correspondnig 

societies,  and  had  made  these  reports  by  the  advice  of  a  third  per- 
son, and  under  the  impression,  that  the  information,  contained  in 
the  reports,  would  be  transmitted  to  another  quarter  for  the  purpose 
of  disclosure;  this  witness  was  asked,  whether  he  had  communi- 
cated his  reports  to  a  magistrate  of  any  description;  (2)  Lord  Ch. 
Justice  Eyre  considered  this  a  proper  question;  the  witness,  on 
answering  in  the  negative,  was  then  asked,  to  whom  he  had  made 
the  communication.  This  question  was  objected  to;  Lord  Ch. 
Justice  Eyre,  upon  this,  said,  "It  is  perfectly  right,  that  all  oppor- 
tunities should  be  given,  to  discuss  the  truth  of  the  evidence  given 
against  a  prisoner;  but  there  is  a  rule,  which  has  universally  ob- 
tained, on  account  of  its  importance  to  the  public  for  the  detection 
of  crimes,  that  those  persons,  who  are  the  channel,  by  means  of 
which  that  detection  is  made,  should  not  be  unnecessarily  disclos- 
ed; if  it  can  be  made  to  appear,  that  it  is  necessary  to  the  inves- 
tigation of  the  truth  of  the  case,  that  the  name  of  the  person 
should  be  disclosed,  1  should  be  very  unwilling  to  stop  it;  but  it 
does  not  appear  to  me,  that  it  is  within  the  ordinary  course  to  do  it, 
or  that  there  is  any  necessity  for  it  in  this  particular  case." 

The  cross-examination  of  the  same  witness  then  proceeded,  and 
the  witness  admitted,  that  be  had  communicated  what  he  knew  to 
a  friend,  who  advised  him  to  communicate  his  reports  of  the  pro- 
ceedings to  another  person.  He  was  then  asked,  whether  that 
friend  was  a  magistrate;  this  he  answered  in  the  negative:  then 
came  the  question,  who  was  the  friend.''  This  was  objected  to;  (3) 
and  the  objection  was,  that  the  person,  by  whose  advice  the  infor- 
mation was  given  to  a  person  standing  in  the  situation  of  magis- 
trate, was,   to  all  intents   and  purposes,  the   informer,  and  that  his 


(1)    24   Howell's    St.    Tr.    753,   on  in   the  late   prosecution  of  Watson   for 

cross-examination      of     Groves.       The  high     treason.      Gurney's     Report,    p. 

same  principle   was   acted  upon  in    the  169.    See  also  32  Howell's   St.  Tr.    100. 

prosecution   of  Home   Tooke   for   high  (2)  24  Howell's  SU  Tr.    808;  on  the 

treason;  in    the     prosecution  of    Walk-  cross-examination  of  Lyman. 

er   and   others   for   a     conspiracy;    and  (8)  24  Howell's  St.  Tr.  p.  811. 


286  Of  the  Examination  of  Witnesses.  [Cli.  8. 


Privileged        name,  therefore,  could  not  be  disclosed.  (1)     The  Jiidees  difiercd 
coniinuni-  ...  .  .  . 

cations.  ill  opinion  upon  this  point;  the  Lord  Chief  Baron   Macdonald  and 

JNIr.  Justice  Buller  were  of  o|)inion,  that  the  question  was  proper: 
but  the  majority  of  the  Court,  consisting  of  the  Lord  Chief  Justice 
Eyre,  Mr.  Barron  Hoiham,  and  Mr.  Justice  Grose,  were  of  the  op- 
posite opinion.  Lord  Chief  Justice  Eyre  said,  "  Those  questions 
which  tend  to  the  discovery  of  the  channels,  by  whom  the  disclos- 
ure was  made  to  the  oflicers^of  justice,  are  not  permitted  to  be  asked , 
Such  matters  cannot  be  disclosed,  upon  the  general  principle 
of  the  convenience  of  public  justice.  All  persons  in  that  situation 
are  protected  from  discovery.  It  is  no  more  competent  to  ask  who 
the  person  was  that  advised  the  witness  to  make  the  disclosure, 
than  it  is  to  ask  to  whom  he  made  the  disclosure  in  consequence 
of  that  advice,  or  than  it  is  to  ask  any  other  question  respecting  the 
channel  of  information,  or  what  was  done  under  it."  Mr.  Justice 
Grose  considered  the  adviser  of  the  witness  to  be  substantially  in 
the  situation  of  an  informer,  and  that  his  name,  therefore,  ought 
not  to  be  revealed.  Mr.  Baron  Hotham  also  considered  the  per- 
son to  be  an  informer;  the  witness,  he  said,  had  made  the  com- 
munication to  his  friend,  under  an  impression  and  full  persuasion, 
that  through  him  the  intelligence  might  be -conveyed  to  a  magis- 
trate; and  there  was  no  distinction,  he  added,  between  making  a 
disclosure  to  the  magistrate  himself,  or  making  it  to  another  per- 
son, who  was  to  communicate  it  to  the  magistrate.  The  Judges 
who  were  of  opinion  that  the  question  might  properly  be  asked,  ad- 
mitted the  general  ride,  and  diftered  only  in  the  application  of  that 
rule  to  the  particular  facts  of  the  case.  The  Lord  Chief  Baron 
said,  if  he  were  satisfied  that  the  friend  to  whom  the  witness  dis- 
closed this  matter  was  in  any  way  a  link  in  the  communication, 
he  should  certainly  agree  that  the  rule  applied  to  him;  but  this 
person  not  being  connected  either  with  the  magistracy,  or  the  ex- 
ecutive government,  the  case  did  not  appear  to  him  to  fall  within 
the  rule.  IMr.  Justice  Buller  admitted  the  rule  with  respect  to  the 
informer  to  the  utmost  extent:  "  if  the  name  of  the  informer,"  he 
said,  "  were  to  be  disclosed,  no  man  would  make  a  discovery,  and 
public  justice  would  be  defeated."  (r»)  He  admitted,  also,  that  if 
a  middle  man  is  made   the  channel  of  communication,  he  ought  to 

(1)  24  Howell's  St.  Tr.  p.  814. 
(m)  See  Note  524,  p.  748. 


Ch.  8.]         Of  the  Examination  of  Witnesses.  287 


receive  the  same  protection  as  the  first   person  to  whom  it  is  men-  Privileged 
tioned.      But  he  differed   in  opinion  only  as  to  the  situation  of  the  caUons"'" 

friend,  respecting  which   this  question  arose:  in   his  view  of  the 

evidence,  he  considered,  that  the  witness  had  communicated  the 
information  to  another  man,  not  for  the  purpose  of  prevaihng  up- 
on him  to  make  the  disclosure  to  a  magistrate,  but  merely  to 
consult  him  for  the  purpose  of  making  up  his  own  mind  wheth- 
er he  should  himself  make  the  discovery;  he  was,  therefore,  of 
opinion  that  the  witness  ought  not  to  be  allowed  to  answer  the 
question. 

Hence  it  appears,  that  a  witness  who  has  been  employed  to  col-  Result  of 
•       /-       1  r  c       \  cases. 

lect  secret  information  for  the  use  oi  government,  or  lor  the  pur- 
poses of  the  police,  will  not  be  permitted  to  disclose  the  name  of  his 
employer,  or  the  nature  of  the  connection  between  that  employer 
and  himself,  or  the  name  of  any  person  from  whom  he  may  have 
received  the  information,  (l)or  the  name  of  the  person  to  whom 
he  may  have  conveyed  the  information  for  the  purpose  of  being 
transmitted;  or  any  other  matter,  which  exposes  the  channel  of 
information.  And  as  it  would  not  be  proper  to  enquire,  to  what 
officer  of  government  the  information  had  been  given,  so  neither 
can  it  be  asked,  whether  the  communication  has  been  made  by 
that  officer  to  the  government.  (2) 

Upon  the  same   principle  of  public  policy,  official   communica-  Official  com- 
1  I  \    ^  £c  c  ^  .    munications. 

lions  between  the  governor  and  law-omcer  oi  a  colony,  respect- 
ing the  state  of  the  colony,  (3) — orders  given  by  a  governor  of  a 
colony  to  a  military  officer,  (4) — a  correspondence  between  an 
agent  of  government  and  a  secretary  of  state,  (.5) — the  report  of  a 
military  court  of  enquiry,  respecting  an  officer  whose  conduct  the 
Court  had  been  appointed  to  examine,  (6) — the  official  correspond- 

(1)  And  see  2  Brod.  &  Bing.  162.  (4)  2  Starkie,  N.  P.  P.  183. 

(2)  R.    V.    Stone,  cited    by  Lord  El-         (5)  Anderson  v.    Sir   W.    Hamilton 
lenborough    in    R.    v.    Watson,    2    Star-     2  Brod.  &  Bing.  156.     Note. 

kie.  M.    P.    C.    136      32    Howell's    St.  (6)   Home     v.    Lord     T.     Bentinck, 

Tr.  101,  S.   C.     Another  example  may     2  Brod.  &  Bing.  130.     See  Lee,  q.  t.  v. 
be  seen  in  De    Berenger's  case,  p.    344,     Birrell,  4  Campb.  335. 
of  Gurney's  report. 

(3)  Wyatt    V.    Gore,  Holt,  N.    P.  C. 
299. 


288 


Of  the  Examination  of  Witnesses.      [Ch.  8. 


Privileged  ence  between  the  commissioners  and  an  officer  of  the  customs,  (]) 
— are  confidential  and  privileged  commnnications,  which  courts  of 
justice  will  not  allow  to  be  disclosed,  (ii) 


comniuni 
cations. 


Privy  coun- 
■ellor. 


On  the  trial  of  the  Earl  of  Stafford  for  high  treason,  in  the 
reign  of  Charles  the  First,  that  nobleman's  confidential  advice  to 
the  king,  at  the  council-table,  was  revealed  by  a  privy  counsellor, 
and  much  pressed  against  the  prisoner.  This  disclosure  was  in 
violation  of  the  oath  taken  by  members  of  the  privy  council.  (2) 
Lord  Clarendon,  in  his  history,  justly  reprobates  the  proceeding,  as 
"  tending  to  banish  forever  all  future  freedom  from  the  council- 
board,  and  from  those  persons  from  whom  his  Majesty  was  to  ex- 
pect advice  in  his  greatest  straits;  all  men  satisfying  themselves, 
that  they  were  no  longer  obliged  to  deliver  their  opinions  there 
freely,  when  ihey  might  be  impeached  in  another  place  for  so 
doing."  (3) 


Member  of  In   the  case  of  Plunket   v.  Cobbett,  (4)  (which   was   an  action 

parliament.  against  the  defendant  for  publishing  a  Jibel  reflecting  on  the  con- 
duct of  the  plaintiff,  as  a  member  of  the  Commons'  House  of 
Parliament  in  Ireland,)  the  counsel  for  the  defendant  enquired 
of  one  of  the  witnesses,  in  cross-examination,  as  to  the  expres- 
sions and  arguments  which  the  plaintiff  had  used  in  Parliament 
on  a  particular  subject,  when  Lord  Ellenborough  interposed,  and 
stopped  the  examination,  observing,  that  it  would  be  a  breach  of 
duty  in  the  witness,  as  a  member  of  the  Irish  Parliament,  and  a 
breach  of  his  oath,  to  reveal  the  councils  of  the  nation. 


Grand  jury- 
man. 


Witness  be- 
fore grand 
jury. 


It  does  not  appear  to  be  completely  settled,  that  a  grand-jury- 
man is  at  liberty  to  disclose  the  evidence  laid  before  the  grand- 
jury,  in  the  course  of  a  criminal  proceeding.  In  an  action  on 
the  case,  for  maliciously  indicting  the  plaintiff,  Lord  Kenyon  is 
reported  to  have  allowed  the  counsel  for  the  plaintiff  to  enquire 
of  a  grand-juryman,    whether   the    defendant    was   prosecutor  of 


(1)  Black  V.  Holmes,  Fox  &  Smith's 
Rep.  28,  K.  B.  in  Ireland. 

(2)  4  Inst.  54. 


(3)  See  Lord  Clarendon's  History. 

(4)  29  Howell's  St.  Tr.  71,  72. 


(n)  See  Note  525,  a.  p.  749. 


Ch.  8.]  Of  the  Examination  of  Witnesses.  289 

the  indictment;  beine;  of  opinion,  tiiat  this  inquiry  did  not  infringe  Privileged 

^~    •   ,         III        I  •  /,w    \  communica- 

upon  the  o&cial  oath  taken  by  the  witness.  (1)  (o)  tions. 

On  the  trial  of  Watson  for  high  treason,  a  witness  was  ques- 
tioned by  the  counsel  for  the  prisoner  as  to  his  having  produced 
and  read  a  certain  writing  before  the  grand  jury:  this  being  ob- 
jected to  by  the  Solicitor-general,  Lord  Ellenborough  C.  J.  said, 
"he  had  considerable  doubt  upon  the  subject:  he  remembered  a 
case  in  which  a  witness  was  questioned  as  to  what  passed  before 
the  grand  jury,  and,  though  it  was  a  matter  of  considerable  im- 
portance, he  was  permitted  to  answer."  The  Solicitor-general 
then  intimating,  that  if  such  a  case  had  not  occurred,  lie  should 
have  thought  that  what  passed  before  the  grand  jury  could  not 
properly  be  enquired  into,  as  they  are  sworn  to  secresy.  Lord  El- 
lenborough added,  that  "  he  had  doubts,  and  that  many  very  emi- 
nent men  at  the  bar  had  entertained  doubts  upon  the  point;  but 
that  he  remembered  the  case  perfectly."  (2)  Here  the  matter  seems 
to  have  dropped;  and  the  question,  as  originally  put,  was  not  re- 
peated. 

A  witness  can  depose  only  to  such  facts  as  are  within  his  own  Memorandum, 
recollection,  (p)  But,  to  assist  his  memory,  he  may  use  a  written 
entry  in  a  book,  or  a  memorandum,  or  the  copy  of  a  memoran- 
dum: [q)  such  entry  or  memorandum  having  been  made  at  the 
lime  when  the  fact  occurred,  or  recently  afterwards  :  and  if, 
afier  looking  at  ilie  memorandum,  he  can  positively  swear  to 
the  truth  of  the  fact  there  stated,  such  evidence  will  be  suffi- 
cient. But  if  he  cannot,  from  recollection,  speak  to  the  fact 
any  further,  than  as  finding  it  stated  in  a  written  entry,  bis 
testimony  will  amount  to  nothing.  (3)  The  entry,  to  which 
the  witness  has  recourse  for  assisting  his  recollection  ought 
to  have  been  made  by  the  vvilness  himself,  or,  if  made  by  an- 
other, examined  by  him,  while  the  fact  was  fresh  in  his  mem- 
ory. (4)      It  is   always  usual,  and  very   reasonable,   when  a   wit- 

(1)  SyUcs  V.  Dunbar,  2  Selw.  N.  (3)  Saiidwell  v.  Saiidwell,  by  Holt 
p.  MS3.  The  only  part  of  the  oath  C.  J.,  Coinbeib.  445.  Doe  v.  Per- 
which  can  be  supposed  to  be  a  bar  to  Kins,  3  T.  R..  752.  Tannery.  Taylor, 
disclosure  is  ihe  following:  "  the  king's  ib.  754.  8  East,  2S4,  289.  Hedge's 
counsel,    your   fellow's,  and  your  own,  case,  2S  Howell's  St.  Tr.  13G7. 

you  shall  keep  secret."  (4)  Burrough    v.    Martin,    2    Campb. 

(2)  32  Howell's  St.  Tr.  107.  112. 


(o)  See  Note  525,  p.  749.     {p)  See  Note  526,  p.  749.     {q)  See  Note  527,  p.  750. 

Vol.  I.  •  37 


290 


Of  the  Examination  of  fViinesses.  [Ch.  8. 


Opinion  of        ness  speaks  from  menioranda,  tliat  the  counsel  should  have  an  op- 
witness.  •         r  1      1  •  • 

portunity  of  looUing  at  them,  when   he  is  cross-examining  the  wit- 
ness. (1)  (r) 


Opinion  of 
witness. 


Of  medical 
men. 


Of  underwri- 
ters. 


Ship-bni!der3. 
Engineers. 


The  opinion  of  a  witness,  in  general,  is  not  evidence:  the  wit- 
ness must  speak  to  facts.  But  on  questions  of  science  or  trade,  or 
others  of  the  same  kind,  persons  of  skill  may  speak  not  only  as  to 
facts,  but  are  allowed  also  to  give  their  opinions  in  evidence.  Tiie 
opinion  of  medical  men  is  evidence  as  to  the  state  of  a  patient,  whom 
ihey  have  seen.  Even,  in  cases  where  they  have  not  theiuselves 
seen  the  patient,  but  have  heard  the  symptoms  and  particulars  of 
his  state,  detailed  by  other  witnesses  at  liie  trial,  their  opinion  on  the 
nature  of  such  symptoms  has  been  properly  admitted.  Thus,  on 
a  question  of  sanity,  medical  men  have  been  permiiled  to  foru)  their 
judgment  upon  the  representation,  which  witnes  es  at  the  trial 
have  given  of  the  conduct,  mannei',  and  generiil  appearance  ex- 
hibited by  the  patient.  (2)  So,  in  prosecutions  for  murder,  they 
have  been  allowed  to  state  their  opin  ion,  whether  the  wounds,  de- 
scribed by  witnesses,  were  likely  to  be  the  cause  of  death. 

The  opinion  of  a  person  conversant  with  the  business  of  in- 
surance, on  the  question,  whether  a  premium  would  have  been 
increased  by  the  communication  of  particular  facts,  has  been 
thought  admissible,  as  judgment  in  a  matter  of  trade.  (3)  Ship- 
builders have  been  admitted  to  state  their  o])inion  on  the  sea- 
worthiness of  a  ship,  from  examining  a  survey,  which  had  been 
taken  by  others,  and  at  which  they  were  not  present.  (4)  In  an 
action  of  trespass,  alleged  to  have  been  committed  in  ujaking  an 
embankment,  which  was  said  to  have  gradually  choked  up  a 
harbor,  an  engineer  was  permitted  to  prove,  from  his  own  ex- 
periiiients,  what  were  the  effects  of  natural  causes  upon  that 
particular  harbor,    and  on   other    harbors    similarly   situated    on 

(1)  By 'Lord  Ch.  Just.  Eyre,  in  whi.-h  n  pri-:oner  ia  Iried,  was  an  act  of 
Hardy's     case,    24    Howell's     fct.    Tr.     insaniiy.     II) 

824.  •  i'-i)   Barlhon    v.    Loii-iliman,    2    Slar- 

(2)  Wrisht's  case,  Russ.  &  Ry.  l<ie.  N.  V.  C  2.")8.  Lul  see  Durrel  v. 
Cr.  C.  456.  Although  they  may  be  Bederley,  Holt,  N  P.  C.  286,  staled  in 
admitted,  after    hearing   .such    evidence,  vol.  ii. 

to    give    their  opinion,    wheiher    certain         (4)    Thornton    v.    Royal  Exch.    Ass. 

syiiiptoms    arc    isymptonis   of    insanity  ;  Company,  Pcake,  N.  P.  C.  25.  Chaiirand 

it    seem.s,    t!  oy    are    not     competent    to  v.    Angerstein,     do.   43.       lieckwitli    v. 

give    an   opinion,    whether    an    act,    for  Sydebothain,  1  Canipb.  117. 


(r)  See  Note  528,  p.  750. 


C'h.  8.]         0/ the  Examination  of  Witnesses.  291 

(he  same  coast,  and  that  the  removal  of  the  bank  would  not,  in  his  General 
opinion,  restore  the  harbor.(l)  Wiiere  the  question  is,  wiiether  a  ^iuiess. 
seal  has  heen  forged,  seal-engravers   may  be  called   to  show  a  dif-  " 

ference  between  u  genuine  impression  and  that  supposed    to    be 
false.  (2)      And  the  opinion  of  an  artist  in  painting   is  evidence  as  Artist. 
to  the  genuineness  of  a  picture.  (3)  (5} 

There  are  several  ways  of  impeaching   the  credit  of   a    wit- Credit  of  wit- 

nes^seg  im- 
ness.  peached. 

First,    The  party,  against  whom  a  witness  is  called,  may  dis-  l-  Proof  of 
,.,,,.  ...  general  char- 

prove  the  tjcts  staled    by  hmi,  or  may  examine  other  witnesses  as  acter. 

to  his  general  character.  To  impeach  the  credit  of  a  witness,  says 
Mr.  Justice  Buller,  (4)  you  can  only  examine  to  his  general  char- 
acter, and  not  to  particular  facts;  and  the  reason  given  is,  that 
every  man  may  be  supposed  capable  of  supporting  his  general 
character,  hut  it  is  not  likely  he  should  be  prepared  to  answer  to 
particular  Hicts,  without  notice;  and  unless  his  general  character 
and  beliaviour  are  in  issue,  he  has  no  notice.  If  a  witness,  for  ex-  Collateral 
ample,  on  being  questioned,  whether  he  has  not  been  guilty  of  a 
felony  or  of  some  infamous  offence,  deny  the  charge,  the  party, 
against  whom  the  witness  has  been  called,  will  not  be  allowed  to 
prove  the  truth  of  the  charge:(5)  such  evidence  is  not  admissible, 
either  for  the  purpose  of  contradicting,  or  of  discrediting  him. 

This  principle  has  been  established  by  many  cases  of  great 
authority.      In   the  case   of  Rook  wood,    who  was   tried   for    high 

(1)  Folkos  V.Chad,  1783,  i\!3.  S.  appears  to  have  been  admitted  ;  as 
C.  ciled  bv  Buller  J.  in  Goodtitle  v.  in  Lord  Castletnain's  case,  7  Howell's 
Bra!i;mi,4T.  li.  498.  St    Tr.  1102,  1110.     Cranburne's  case, 

(2)  By  Ld  Mansfield,  in  Folkes  v.  13  Howell's  St.  Tr.  261,  ard  Harri- 
Cliad,   ib.  son's    ca.-^e,    !2   Howell's    St-    Tr.   862; 

(3)  On  the  admissibility  of  opinion,  but  no  ob'eclion  was  made  to  tiie  ev- 
os    to   the   genuineness  of  band-wiiting,  idence,  in  those  cases. 

vide   part  2,  of  ibis   vol    ch.   8,  sect.    2.  (5)     RooUwood's  case,    and    Layer's 

(4)  Bull.  N.  P.  296.  See  also  case,  cited  (4)  supra.  R.  v.  Watson, 
Rookwood's  case,  4  St.  Tr.  6S3,  S.  3  Starkie.  N.  P.  C  149.  32  How- 
C.  13  Howell's  St.  Tr.  2!0.  Lay-  ell's  St.  Tr.  490,  S.  C.  Shurpe  v. 
er's  case,  6  St.  Tr.  29-'^,  316,  S.  C.  Scoging,  Holt,  N.  P.  C.  .'541.  The 
16  Howell's  St.  Tr.  246,  2S4.  De  same  rule  is  observed  in  the  Courts 
L.1  ftloite's  case,  21  Hovvell'.s  St.  Tr.  of  Justice  in  Scotland;  see  Burnet's 
811.  In  s.  me  instances,  in  the  State  Treatise  of  Crim.  Law  of  Scotland, 
Trials,     evidence     of    p.irlicular     facts  p.    397. 

(«)  See  Note  529,  p.  759. 


292 


Of  ihs  Examination  of  Witnesses.       [Ch.  8. 


General 
chnracter  of 
witness. 


Mode  of  exa- 
mining. 


Answer. 


treason, (1)  the  point  was  considered  as  too  clear  for  argument: 
"  Look  ye,"  said  Lord  Chief  Justice  Holt,  "you  may  bring  witness- 
es to  give  an  account  of  the  general  tenor  of  the  witness's  conver- 
sation; but  you  do  not  think,  that  we  v/ill  try,  at  this  tinfie,  wiieth- 
er  ha  be  guilty  of  robbery."  And  on  the  trial  of  Layer  for  high 
treason,  (2)  Lord  North  and  Grey  being  called,  on  behalf  of  the 
prisoner,  to  give  a  report  of  the  character,  which  one  of  the  witnesses 
for  the  prosecution  had  given  of  himself  much  to  his  disadvantage, 
the  Lord  Chief  Justice  Pratt  said  to  the  prisoner's  counsel,  "  You 
know  what  the  rule  of  practice  and  evidence  is,  when  objections 
are  made  to  the  credit  and  reputation  of  the  v/itness;  you  cannot 
charge  him  with  particular  offences:  for  if  that  were  to  be  allowed, 
it  would  be  impossible  for  a  man  to  defend  himself.  You  are  not 
to  examine  to  particular  fiicts,  to  charge  the  reputation  of  any  wit- 
ness; but  you  are  to  ask,  in  general,  what  is  his  character  and 
reputation."  And  in  summing  up  the  case  to  the  jury,  the  Chief 
Justice  said,  "  The  reason,  why  particular  facts  are  not  to  be  given 
in  evidence,  to  impeach  the  character  of  the  witness,  is,  that  if  it 
were  permitted,  it  would  be  impossible  for  that  witness,  having  no 
notice  of  what  will  be  sworn  against  him,  to  come  prepared  to  give 
an  answer  to  it;  and  thus  the  characters  of  witnesses  might  be 
vilified,  without  having  any  opportunity  of  being  vindicated."  The 
point  was  much  discussed  in  the  late  trial  of  Watson  for  high  trea- 
son; and  the  principle,  above  laid  down,  which  had  been  settled 
so  long  before,  was  again  recognised  and  fully  confirmed.  (3)  (<) 

The  regular  mode  of  examining  into  general  character  is  to 
enquire  of  the  witnesses,  whether  they  have  the  means  of  know- 
ing the  former  witness's  general  character,  and  whether,  from 
such  knowledge,  they  would  believe  him  on  his  oath.  (4)  Li 
answer  to  such  evidence  against  character,  the  other  party  may 
cross-examine  those  witnesses,  as  to  their  means  of  knowledge, 
and  the   grounds  of  their  opinion;    or   may   attack  their  general 

(1)  4   St.   Tr.  693,  S.  C.     13   How-  32  Howell's  St.  Tr.  490,  492,  S.  C. 
ell's  St.  Tr.  211.  (4)    Rookwood's    case,    4    St.     Tr. 

(2)  6  St  Tr.  298,  316,  S-  C.  16  693,  S.  C.  13  Howell's  St.  Tr.  210. 
Howell's  St".  Tr.  246,  286.  Mawson  v.   Hartsink,  4    F.sp.   N.    P.  C. 

(3)  Vol.    ii.    p.    28S,    Gurney's  Rep.  102. 


(0  See  Note  530,   p.  763. 


Ch.  8.]         Of  the  Examinaiion  of  Witnesses,  293 

character,  and  by  fresh  evidence  support  the  character  of  his  own  Contradictory 

,     ,  statements. 

Witness,  (w) 


Secondly,  The  credit  of  a  witness  may  be  impeached,  by  proof,  2.  Proof  of 

■'  contradictory 

that  he  has  made  statements  out  ol  court,  on  the  same  subject,  statements. 
contrary  to  what  he  swears  at  the  trial.  (1)  A  letter  written  by 
him,  or  a  deposition  signed  by  him,  may  be  used  as  evidence  to 
contradict  his  testimony;  the  letter,  or  deposition,  being  first  regu- 
larly proved.  An  examined  copy  of  an  answer  in  Chancery  is 
sufficient  proof  of  the  ansvi^er,  for  the  purpose  of  contradicting  a 
witness.  (2)  A  conviction  before  a  magistrate,  purporting  to  set 
out  the  deposition  of  a  witness,  is  not  admissible,  as  proof  of  such 
deposition.  (3) 

The  verbal  declarations  or  statements  of  a  witness,  made  on 
some  former  occasion  to  a  third  person,  are  frequently  given  in 
evidence,  by  the  party  against  whom  the  witness  appears,  with 
the  view  of  showing  that  his  several  accounts  of  the  particular 
transaction,  on  which  he  has  been  examined,  are  inconsistent 
and  contradictory.  This  evidence  of  contradictory  statements  is 
produced,  for  the  purpose  of  exciting  doubt  and  distrust  against 
his  testimony,  as  to  the  particular  transaction,  on  which  the  dis- 
crepancy arises,  or,  perhaps,  to  raise  suspicion  as  to  the  truth  of 
his  testimony,  in   general.*     Before  such  evidence  can  be  regular-  Cros.s-esami- 

,  1     •        I  I     1     ir       r     I  •  -11     1  -I       nation  as  to 

ly    admitted  on   uel)alt    ot   the  party,    it   will   be  necessary,  m   Hie -ter^a/ siate- 

first    instance,  to    prepare    the    wav    for  its    admission,    by    cross  "'!^"'^  "*  ''^^ 

'         '      '  ■'  '     •'  Witness- 

examining    the   witness   as  to    the    supposed    contradictory    state- 
ments,  which  are   afterward  to  be  brought   forward   against  him. 

(1)  De  Saiily   v.   Morgan,   2  Esp.  N-     B.  &  Cr.  25. 

P.  C.  691.     Christian  v.  Coombe,  2  Esp.         (3)   R.  v.  Howe,  6  Esp.  N.  P.  C.  125. 
N.  P.  C.  489.  1  Campb.  461,  S.  C. 

(2)  Ewer  v.  Ambrose  and  another,  4 


*  According  to  the  practice  of  the  courts  in  Scotland,  the  credit  of  a  witness  can- 
not be  impeached  by  proof  of  his  having  given  a  different  account  of  the  matter  on 
a  former  occasion.  The  witness  may,  if  he  chooses,  call  for  his  declaration,  (or  de- 
position, if  lie  has  been  sworn.)  and  have  it  cancelled  in  his  presence,  before  his 
examination  begins,  that  he  may  be  free,  and  unfettered,  in  giving  his  evidence  on 
the  trial.  And,  if  the  declaration  should  not  have  been  cancelled,  it  cannot  be  used 
in  any  manner  to  the  prejudice  of  the  witness.  See  Hume's  Com.  on  the  Crim. 
Law  of  Scotland,  vol.  li.  p.  367;  and  Burnett's  Trea.  on  the  same  subject,  p.  467. 


(u)  See  Note  531,  p.  767. 


294  Of  the  Examinatum  of  Witnesses.  [Ch.   8. 

Contrndictory    'YW\s  course  of  proceedin!^  is  indispensable,  from  a  principle  of  jus- 

iipe  due  to  t!ie  witness;  for  as  the  direct  tendency  of  the  evidence 

is  to  inipeach  his  veracity,  by  contrasting;  h's  present  state  will) 
ihat  sii[iposed  to  have  been  made  by  him  to  some  other  person, 
common  justice  requires,  that,  before  his  credit  is  allacked,  he 
should  have  an  opportunity  of  declaring,  whether  he  ever  made 
such  statement  to  that  person,  and  of  explaining,  in  the  re-cxaml- 
nation,  the  nature  and  particulars  of  the  conversation',  tmder  what 
circumstances  it  was  made,  from  what  motives,  and  will)  what  de- 
sign. Tlie  former  account,  given  l)y  him  in  conversation,  may  have 
been  only  partially  heard,  or  misunderstood,  or  partly  forgotten,  or 
intentionally  misrepresented;  and  where  the  variance  between  his 
present  statement  upon  oath,  and  the  fornier  statement,  as  reported 
by  a  third  person,  may  be  as  much  owing  lo  the  mistake  of  iheone 
witness  as  to  the  misrepresentation  of  the  other,  it  will  be  necessary, 
that  the  memory  and  credit  of  both  witnesses  should  be  fairly  tried 
and  contrasted;  and,  with  this  view,  the  person,  with  whom  the 
conversation  is  supposed  to  have  passed,  and  the  particulars  of  the 
conversation,  on  which  it  is  intended  to  contradict  the  witness, 
shou'd  be  distinctly  suggested  to  the  witness,  before  any  contradic- 
tion is  attempted.  (1)  If,  for  instance,  a  witness,  on  being  exam- 
ined in  chief  as  to  some  transaction,  supposed  to  have  occurred  be- 
tween certain  persons,  should  admit,  that  he  had  heard  of  such  a 
thing,  but  does  not  know  its  cause,  it  would  be  irregular  to  prove 
his  having  made  a  declaration  respecting  the  cause,  in  order  to 
prove  his  knowledge  of  the  cause,  without,  first  asking  him,  in  the 
cross-examination,  whether  he  had  not  made  such  a  declaration; 
or,  if  he  had  answered,  that  he  did  not  remember  the  transaction, 
it  would  be  equally  irregular,  without  such  previous  cross-exami- 
nation, to  prove  declarations  made  by  him  respecting  tlie  transac- 
tion, for  the  purpose  of  showing,  ih;U  he  must  have  remembered 
it.  (2) 

Thus  it    appears,  that   a  witness   ought    regularly    to   be  cross- 


(1)  See   the   opinion  of  llie    Judgns,  opinion.       TliJ     opinion    of  the     Judg- 

in  the  course  of  the    proceedings    in  ihe  es,  on    the  several    points   which     arose 

House    of  Lords,   on    the    liill    of  p.iins  during      the.se      proceedings       are     re- 

and   pen;Ulie.s;  p.    575,    of    the    printed  ported  also  in  2  Bred.    &    Bing.  p.  236, 

evidence.     Some    of  the    preceding    re-  315. 

marks    have   been   suggested    by     thit  (2)  lb.  p.  576. 


Ch.  8. J  Of  the  Examination  of  II  itnesses.  295 

exaiviined   as  to  contradictory  statements,  supposed   to  liave  been  Contradictory 

made  by    liiin    on    a  lormer   occasion,    betore   sucli   contradictory  ^ 

statements  can  be  adiuilied  in  evidence,  to  iinpeacli  the  credit  of 
his  Ici^liniony.  And  this  rule  has  been  extended  not  only  to 
such  contradictory  statements,  but  also  to  other  declarations  of 
the  witness,  and  to  acts  done  by  him  through  the  medium  of  de- 
clarations or  words.  So  that,  if  it  is  intended  to  ofiier  evidence 
of  former  declarations  of  the  witness,  or  of  acts  done  by  him, 
though  not  with  a  view  to  contradict  his  statement  upon  oath  in 
tlie  examination  in  chief,  but  with  the  view  of  discrediting  him 
as  a  cor/upt  witness,  or  as  one  who  would  corrupt  other  wit- 
nesses; in  this  case  also,  it  has  been  determined,  that  the  wit- 
ness should  be  previously  questioned  as  to  such  declarations,  or 
such  acts,  on  the  crbss-examination.  This  appears  fioni  an  an- 
swer of  the  Judges  to  a  question  put  to  them  by  the  House  of 
Lords,  in  the  course  of  the  proceedings  before  referred  to.  (1) 
'J  lie  question  was  in  the  following  words:  "  Whether,  if  a  witness 
in  support  of  a  prosecution  has  been  examined  in  chief,  and  has  not 
been  asked,  in  cross-examination,  as  to  any  declarations  made  by 
him,  or  as  to  acts  done  by  him,  to  procure  persons  corruptly  to 
give  evidence  in  sup|)()rt  of  the  prosecution,  it  would  be  com- 
petent to  the  jiaity  accused  to  examine  witnesses  in  his  defence,  to 
prove  such  fieclaraiions  or  acts,  without  first  calling  back  such  wit- 
nesses, to  be  examined,  or  cross-examined,  as  to  the  fact,  whether 
he  ever  made  such  declarations,  or  did  such  acts?"  Anoilier  ques- 
tion was  the  following:  "  If  a  witness,  called  on  the  part  of  a 
plaintiff  or  prosecutor,  gives  evidence  against  the  defendant,  and 
if,  after  the  cross-examination  of  such  witness  by  the  defendant's 
counsel,  ihey  discover,  that  the  witness,  so  examined,  has  cor- 
rupted, or  endeavored  to  corrupt,  another  person  to  give  false 
testimony  in  such  cause;  whether  the  defendant's  ccunsel  may 
not  be  ))ei'mitted  to  give  evidence  of  such  corrupt  act  of  the  wit- 
ness, without  calling  him  back?"  The  Judges  were  of  opinion, 
on  both  questions,  that  the  projoosed  proof  could  not  be  adduced 
without  a  pievious  cross-examination  of  the  witness  as  to  the 
sulject-u'iaiter.  "  The  general  rule,"  said  the  Lord  Chief  Justice, 
*' and  the  general  practice,  is  this:  if  it  be  intended  to  bring  the 
credit  of  a    witness  into   question,  by  proof  of  any  thing  that  he 

(1)  Page  C05  of  the  printed  tninntes  of  evidence. 


296  Of  the  Examination  of  Witnesses.        [Ch.  8. 

Contradictory    may  iiave  saicl  or  declared  touching   the  cause,  the  witness  is  first 

stulenients.  i       ■  ....  i       i  •  i  ^ 

asked,  upon  cross-exaujination,  whether  or  no  he  lias  said   or  de- 
clared that  which  is  intended  to  be  proved." 

Cross-exaniin-      "pjjg  rulcs    of   cross-exaininalioH    as  to    contradictory   written 

Btion  as  to  ivril  J 

ten  statements  Statements,   supposed   to   have   been   made  by  the    witness,  were 

of  the  witness.  i    j-  j  •     .1  i-  •       i        tt  <•  t         1 

inucli  discussed  in  the  same  proceedings,  in  the    House  of  Lords. 

On  one   occasion,  in  the  course  of  those   proceedings,  (1)  a  letter 

was  shown     to   a  witness  on    cross-examination,   and,   on  being 

questioned  as   to   the  hand-writing,   she   affirmed,  thai  she  could 

not   say  whether  it  had    been  written   by  her.      The  counsel  then 

proceeded  to  cross-examine  the  witness,  as  to  her   having  written 

certain   particulars  in  a   correspondence  with    her    sister.     This 

mode  of  cross-examination  was   objected   to;  on  which  occasion, 

the  following   question-  was   put  by  the   House   of  Lords   to   the 

Cross-examin- Judges  for   iheir  opinion:  (2)   "Whether  a   party   would    be   al- 

ing  as  to   con-  1  ,     •  .    .  .  .        , 

tents  of  a  let-  lowed,  in   cross-examining   a   witness,  to  represent,  in  the   state- 
^®'""  ment  of  a   question,  the  contents  of  a  letter;  and   then  to  ask  the 

witness,  wheiher  he  wrote  such  a  letter  to  any  person  with  such 
contents,  or  contents  to  the  like  effect,  without  having  first  shown 
the  letter  to  the  witness  and  asked  him  whether  he  wrote  it,  and 
without  his  admitting  that  he  wrote  the  letter.'^"  The  Judges 
were  of  opinion,  that  the  question  must  be  answered  in  the  ne- 
gative; and  the  reason  of  their  opinion  was,  "  That  the  contents 
of  every  written  paper  are,  according  to  the  ordinary  and  well- 
established  rules  of  evidence,  to  be  proved  by  the  paper  itself, 
and  by  that  alone,  if  the  paper  be  in  existence,  {v)  The  proper 
course,  therefore,  is,  to  ask  the  witness,  whether  that  letter  is  of 
his  hand-writing;  if  the  witness  admits  it  to  be  his  hand-writing, 
the  cross-examining  counsel  may,  at  his  proper  season,  read 
that  letter  as  evidence:  and  when  the  letter  is  produced,  then  the 
whole  of  the  letter  is  made  evidence.  One  of  the  reasons 
(continued  the  Lord  Chief  Justice)  for  the  rule  requiring  the  pro- 
duction of  written  instruments,  is,  in  order  that  the  Court  may 
be  possessed  of  the  whole.  If  the  course,  here  proposed,  should 
be  followed,  the  cross-examining  counsel  may  put  the  Court  in 
possession   only  of  a   part  of  the   contents  of  the   written  paper; 

(1)  Tn  the  case  of  the  witness  Louisa  (2)  Printed  evidence,  page  334. 
Demont,  page  S2S,  334,  of  the  printed  2  Brod.  &  Bing.  286,  S.  P.  Seo 
evidence.  3  Barn.  &  Cress.  S.  P-  749,  1.  15. 

(d)  See  Note  532,  p.  771- 


Ch.  8.]       OJ  the  Examination  of  Witnesses.  297 

and  thus   the   Court   may   never   be   in   possession    of  the   whole,  Contrndieiorj 

,                                   '                                                         Statements, 
though  It  may  happen,   lliat  the  wliole,  u    produced,    may  have  an 

effect  very  diiTerent  from  thai  which  might  be  produced  by  the 
statement  of  a  part."  'J'he  writing,  therefore,  if  in  existence  and 
producible^  ought  to  be  produced  and  shown  to  the  witness. 
Wlien  it  is  produced,  the  cross-examining  counsel  may,  if  lie 
thinks  proper,  show  the  witness  only  a  part,  or  only  one  or  more 
lines  of  the  letter,  and  not  the  whole  of  it;  and  may  ask  the  wit- 
ness, whether  he  wrote  such  part,  or  such  one  or  more  lines.  (1) 
If  tlie  witness  does  not  admit,  that  he  wrote  the  part  shown  to 
him,  he  cannot  be  cross-examined  as  to  the  contents  of  the  letter, 
for  the  reason  already  given;  namely,  that  the  paper  itself  ought 
to  be  produced,  in  order  that  the  whole  may  be  seen,  and  the 
one  part  explained  by  the  other.  (2)  Jf,  on  the  other  hand,  the 
witness  should  admit,  that  he  wrote  the  letter,  siiil  ilie  rule  with 
respect  to  cross-examining,  as  to  the  contents,  is  precisely  the 
same:  the  counsel  cannot  enquire  of  the  witness  whether  or  not 
such  statements  are  in  the  letter;  the  letter  itself  must  be  read, 
lo  show  whether  it  contain  such  statements.  (3)  With  respect  to 
the  proper  lime  for  reading  the  letter,  the  ordinary  rule  is,  that 
it  shall  be  read  as  the  evidence  of  the  cross-examining  counsel, 
as  part  of  his  evidence  in  his  turn,  after  he  shall  have  opened 
his  case;  this  is  the  ordinary  course;  but  if  he  suggests  to  the 
Court,  that  he  wishes  to  have  the  letter  read  immediately,  in 
order  to  found  certain  questions  upon  the  contents,  which  can- 
not well  or  effectually  be  done,  without  reading  the  letter  itself ; 
in  that  case,  for  the  more  convenient  administration  of  justice,  the 
letter  is  permitted  to  be  read  at  the  suggestion  of  the  counsel; 
still,  however,  it  must  be  considered  as  part  of  the  evidence  of  the 
cross-examining  counsel,  and  subject  to  all  the  consequences  of  his 
having  it  so  considered.  (4) 

The  rule,  above  laid  down,  for  cross-examining  a  witness  as 
10  the  contents  of  a  letter  or  other  written  paper,  is  applicable, 
at  the  furthest,  only  lo  a  case  in  which  the  writing   is  supposed  to 

(i)  The    opinion   of    the   Judges    on         (3)  Opinion  of  the  Judges,  in  answer 

the  second    question    in    the  case    of  the  lo  another    question,  hi    the  case    of  the 

same  witness,    page    335  of  the    printed  same  witness,  p.  337  of  the    printed  evi- 

evidence.     2  Liiod.  Ha  Bing.  286.  dence.    2  brod.  &j.  biug.  7S8. 

(2J  Answer    of   the     Judges   to    the         (4)  Opinion  of  the  J°udges,  in  answer         ' 

second    part   of    tlie    second     question,  to    the  Zd    pari   of  tlie    rast-mentioned 

page  336  of  the  printed  evidence.  question.    2  lirod.  &,  Bing.  289. 

Vol.  1.  38 


298  Of  the  Examination  of  Witnesses.      [Ch.  8. 

Contrad)rforjr    \jq  Jp  existence.      Tliis  appears  to  be  clear,   from  considering  the 

statemenls.  .    .  .  ,  ° 

oi)mion  of  tlie   Judges,  and   the   circumstances  out  of  wliich   the 

question   arose.      The   letter,   written   by   tlie    witness,   was,    in 

that   case,     actually   in   the    possession   of    ilie    cross-examining 

counsel,    produced     by   liim,     and  shown    to    the    witness  ;    the 

question,  referred  to  the  Judges,  proceeds  upon  the  supposition 

of   the   letter  being    producible  ;    and    the  entire    reasoning,    on 

wiiich  their    opinion  is    founded,    expressly    refers  to    the    case 

of  an  existing   paper.     They    held,  in  the    case    proposed,  that 

the  counsel  could    not    cross-examine   as    to  the    contents  of    a 

letter,  which  was  produced  and  shown  to  the  witness  ;  because 

"  the  contents  of  every   written   paper  are   to   be  proved  by  the 

paper  itself,  and  by  that  alone,   if  the   paper  be    in  existence." 

But  if   the   paper  be   not    in   existence,    this   reasoning   will   not 

Cross-exnmin-  apply.     If,  therefore,  a  letter,   written  by  the  witness,  is  proved 
ing  aa  to  lo»t         i  r  j  i  7  5  .  1         V 

letter.  to  have  been  lost   or  destroyed,    (in   v/hich   case,   the   only  mode 

of  contradicting  him  would  be  by  producing  afterwards  some 
secondary  evidence  of  the  contents  of  the  letter,)  then  it  would 
be  reasonable  and  proper  to  allow  the  counsel  to  cross-examine 
the  witness  as  to  the  contents  of  such  letter.  This,  indeed, 
appears  to  be  the  only  regular  mode  of  proceeding;  for,  as  the 
credit  of  the  witness  may  be  afterwards  impeached  by  proof  of 
the  contents  of  the  lost  letter,  no  less  than  by  the  production 
of  an  original  letter,  justice  requires,  that  the  witness  should 
first  have  an  opportunity,  in  his  own  defence,  of  entering  into 
a  full  statement  of  what  he  has  written  ;  and  this  statement  is 
not  inferior,  in  its  kind,  as  evidence,  to  any  other  secondary  proof 
of  the  contents,  that  may  be  afterwards  produced  to  contradict 
him.  This  latter  circumstance  distinguishes  the  case  from  that 
before  mentioned,  in  which  the  witness's  letter  was  in  the  pos- 
session of  the  cross-examining  counsel,  and  that  letter,  if  pro- 
duced, would  have  been  the  best,  and,  as  the  Judges  held,  the 
only  legitimate  proof  of  its  contents.  It  may,  perhaps,  be  sug- 
gested, that,  since  the  proof  of  the  loss  or  destruction  of  the 
writing  is  strictly  necessary,  before  the  counsel,  in  such  case  can 
cross-examine  as  to  its  contents,  the  introduction  of  such  ante- 
cedent proof  might  occasion  great  inconvenience,  by  disturbing 
the  regular  progress  of  the  cause,  and  distracting  the  attention. 
But  when  this  inconvenience  is  likely  to  be  felt  in  any  great 
degree,  it  will  be  always  in  the  power  of  the  Judge,  if  he  shall 


Ch.  8.]         Of  the  Examination  of  Witiifsscs.  299 

think  proper,  either  to  admit,  in  the  first  instance,  the  wiin-'ss's    Contradictory 

'       '                                      -    ,            .  .                                                               c  statements. 
Statement  of  the  contents  of  the  writing,  or  to  reserve  the  power  ol 

cross-examining  as  to  its  contents,  until  the  time  has  arrived,  wiien 

the  counsel  on  the  opposite  side  shall  enter  upon  his  case. 

A  question,  connected  with  this   subject,  here  nalurally  occurs;  Crosi-examin- 
^  '  .  .  ing  as  to  nav- 

wbeiher  counsel  may  be  allowed  to  cross-examine  a  witness,  as  to  inj;  written  « 

his  having  written  a  letter  containing  a  different  statement.  This  ^'g^[®°*  ""^** 
question,  it  is  conceived,  in  the  general  form  here  stated,  has  not 
been  determitied  by  the  resolution  of  the  judges  in  the  case  before 
mentioned:  for,  in  that  case,  the  question,  put  to  a  witness,  related 
to  a  variety  of  particular  expressions  and  entire  passages,  supposed 
to  be  contained  in  a  letter,  and  the  letter,  which  was  supposed  to 
contain  such  expressions,  had  been  actually  produced,  and  shown 
by  the  counsel:  whereas,  on  the  contrary,  the  question,  here  pro- 
posed, is  quite  general,  namely,  whether  the  witness  has  given 
any  account  in  his  letters,  or  otherwise,  differing  from  his  present 
statement;  and  the  question  is  proposed,  without  any  reference  to 
the  circui^jslance,  whether  the  letter  is  or  is  not  in  existence,  or 
whether  it  has  or  has  not  ever  been  seen  by  the  cross-examin- 
ing counsel.  Nor  does  the  question,  here  proposed,  appear  to  have 
been  determined  by  the  resolution  of  the  Judges,  on  a  question, 
which  occurred  in  a  later  stage  of  the  proceedings;  since,  in  this 
latter  case  also,  the  question  related  to  particular  expressions,  sup- 
posed to  have  been  contained  in  the  letter,  and  the  opinion  of  the 
Judges  seems  to  have  been  partly  founded  on  the  supposition,  that 
the  witness's  letter  was  actually  in  the  possession  of  the  cross-ex- 
amining counsel,  as  afterwards  distinctly  appeared  to  be  the  fact.* 
Since  the  subject,  therefore,  seems  still  open  for  discussion,  and 
may  be  considered  of  some  importance,  as  affecting  very  material- 
ly the  powers  of  cross-examination,  upon  which  the  right   admin- 

*  The  question,  here  alluded  to,  arose  in  the  following  manner. (a)  The  cross- 
examining  counsel  asked  a  witness,  named  Giuseppe  Sacchi,  "  Whether  he  had 
ever  represented  to  any  person,  after  he  had  left  the  service  of  the  Princess,  that 
he  taxed  himself  with  ingrati!ude  towards  a  generous  mistress?"  On  this,  the 
Attorney  General  submitted,  that  the  question  should  be  put,  whether  he  had  so 
represented  himself  in  conversation ;  for,  that  if  the  representation  was  in  writing. 
the  writing  itself  should  be  produced,  before  the  question  could   be  put.     .\fter  an 

(«)   Printed  evidence,  p.  445. 


300 


Of  ike  ExumiiKiiicm  of  Ifitncsscs. 


[Ch.  8. 


Contradictorj     istration  of  jiisiire  so  niiicii  depends,  il  will  not,  perhaps,  be  iliought 

loreign  lo  the  subject,  to  consider,  whether  any  legal  objeciion  car» 

be  made  to  the  proposed  question.  The  queration  is  this;  Can  a 
witness  be  properly  a^ked,  in  the  cross-examination,  whether  he 
has  written  any  letter  giving  a  different  account? 

Objection.  "i  hc  cbjeclor  lo  such  a  qucbiion  might  possibly  urge,  that  if  the 

account  is  in  writing,  the  writing  ought  to  be  produced,  as  the 
best  evidence,  and  that  the  witness's  statement  of  the  contents  of 
the   letter   is  only  secondary  evidence,  which  cannot   be  received: 


argutiient  upon  the  point,  the  followinw  question  was  put  to  the  Judges:  "  Whether, 
according  to  tlie  established  practice  in  the  courts  below,  counsel  in  cross-examin- 
ing are  entitled,  if  the  counsel  on  the  other  siile  object  to  it,  to  ask  a  witness, 
whether  he  has  made  representations  of  a  particular  nature,  not  specifying  in  his 
que^^lion,  whether  the  question  refers  to  representations  in  writing  or  in  words.'" 

The  Lord  Lhief  Justice,  in  delivering  the  opinion  of  the  Judges, (a)  observed, 
that  they  felt  some  ditficulty  in  giving  a  distinct  answer  to  that  proposition,  n» 
they  did  not  remember  an  instance  of  a  question  liaving  been  asked  by  the  cross- 
examining  counsel  precisely  in  those  words,  and  they  were  not  aware  of  any 
established  practice  distinctly  referring  to  such  a  question  The  Lord  Chief 
Justice  then  adverted  to  the  rule  of  law  respecting  the  examination  of  a  wit- 
ness, as  to  a  contract  or  agreement,  in  which  case,  if  the  counsel  on  the  one 
side  were  to  put  a  question  generally  as  to  the  contract,  the  ordinary  course  is 
for  the  counsel  on  the  other  side  to  interpose  an  intermediate  question,  wheth- 
er the  contract  referred  to  was  in  writing,  and  if  the  contract  should  appear 
to  have  been  in  writing,  then  all  further  enquiry  would  be  stopped,  because  the 
writing  itself  must  be  produced.  With  reference  to  this  established  rule,  they 
considered  the  question  proposed  to  them,  and  were  of  opinion,  that  the  wit- 
ness could  not  properly  be  asked,  on  cross-examination,  whether  he  had  written 
such  a  ihin^,  the  proper  course  being  to  put  the  writing  into  his  hands,  and  ask  him 
whether  it  be  his  writing;  they  held  also,  that  if  the  witness  were  asked,  wheth- 
er he  had  represented  such  a  thing,  they  should  direct  the  counsel  to  ask,  whether 
the  representation  had  been  made  in  writing,  or  by  words;  and  if,  in  consequence, 
he  should  ask,  whether  it  had  been  made  in  ivriting,  the  counsel  on  the  other  side 
would  object  to  the  question;  but  if  lie  should  ask,  whether  the  witness  had 
said  such  a  thing,  the  counsel  would  undoubtedly  have  a  right  to  put  that 
question. 

The  counsel  were  then  called  in, (6)  and  were  informed  that  if,  on  cross-ex- 
amination, they  enquired  of  a  witness,  whether  he  had  made  representations  of  anj 
particular  nature,  stating  the  nature  of  those  representations,  they  should,  in  their 
enquiry,  ask  the  witness  first,  "  Whether  he  made  the  representations  by  parol,  or 
in  writing  V 

The  Attorney-General  of  the  Q,ueen  enquired,  whether  he  might  be  at  liberty  to 
niter  his  question,  and  put  it  thus:  "  Did  you  ever  make  any  representation  in  wri- 
ting concerning  your  real  or  supposed  ingratitude  towards  so  generous  a  mistress 
as  iler  lioyal  Highness.'"  The  counsel  were  then  directed  to  withdraw,  and,  on 
their  being  recalled,  the  counsel  for  the  Queen  wore  asked,  whethi;r  they  wished 
to  withdraw  the  question;  upon  which  the  Attorney-General  of  the  Queen  stated, 
that  he  begged  to  withdraw  the  question,  to  save  the  necessity  for  further  discus- 
sion. The  examination  then  proceeded,  and  letters  were  put  into  the  witness'* 
hands,  which  he  admitted  to  hf  hi"?  hand-writing. 


(ff)  Pag«  446,  2  Brod.  &.  Bing.  293  (b)  Page  447. 


Cli.  8.]  Of  tf I e  Examination  of  Witnesses.  301 

that,  upon  this    principle,  a  witness  cannot    be  examined  as  to  the  Contradictory 

^       ,       ,                .                                          ...                       statements. 
contents  oi  a  deed,  or  written  contract,  or  other  written  instrument 

unless  the  original  is  lost,  or  destroyed,  or  in  the  possession  of  the 
adverse  party.  Or,  lastly,  it  might  be  argued,  that  the  witness  may 
not  be  able  to  remember  some  particulars  of  his  letter,  especially 
of  a  letter  written  sometime  before,  and  may,  perhaps,  suppose  the 
statement,  contained  in  it,  to  vary  in  some  respects  from  the  account 
which  he  has  given  in  his  examination  in  chief,  and  to  be  differ- 
ent, also,  from  what  the  latter  realy  was;  in  which  case,  the  wit- 
ness may  make  an  inaccurate  representation  of  its  contents,  to  his 
own  disadvantage,  and  his  character  may  consequently  suffer, 
without  any  just  ground  of  imputation;  whereas,  if  the  letter  itself 
were  produced,  this  difference  of  statement  might  be  corrected  and 
satisfactorily  explained. 

The  argument  on  the  other  side,  in  support  of  the  question,  may  Answer, 
be  supposed  to  be  of  the  following  kind.  First,  with  respect  to  the 
principle,  urged  in  support  of  the  objection,  (namely,  that  the  letter 
itself  is  the  best  evidence,  therefore  that  the  parol  evidence  of  the 
witness  is  not  admissible,)  although  this  principle  holds  almost 
universally  with  reference  to  the  proof  of  the  issue.,  and  every  mate- 
rial part  of  the  issue,  it  will  be  found  not  to  apply  to  a  cross  exami- 
nation, which  is  solely  intended  to  try  thewitness'^s  credit  and  veracity.  \,  Meaning  of 
A  witness,  it  is  admitted,  cannot   be  questioned  as  to  the  contents  t'le {"'s.  »s  to 

,  -^        _  production  oi 

of  a  written  agreement,  or  other  written  instrument,  wherever  the  the  best  ctj. 
agreement,  or  writing,  is  either  part  of  the  issue,  or  material  to  the 
issue;  because  the  writing  itself  is  the  best  proof  of  its  contents; 
and  this  being  within  the  knowledge  of  the  parties,  (as  it  must  be 
supposed  to  be,  from  its  being  material  to  the  issue,)  the  parly,  who 
wishes  to  avail  himself  of  the  writing,  ought  to  be  provided  with 
the  regular  proof  of  its  contents;  and  the  circumstance  of  his  not 
satisfactorily  accounting  for  the  non-production  of  the  original  in- 
strument, is  of  itself  matter  of  suspicion.  Chief  Baron  Gilbert,  in 
treating  of  the  general  rule,  evidently  considers  it.  as  a  rule  appli- 
cable only  to  the  proof  of  theissue,  or  of  some  fact  material  to  the  issue. 
"The  true  meaning  of  the  rule  of  law,  (he  says,)  (1)  which  requires 
the  greatest  evidence,  that  the  nature  of  tiie  thing  is  capable  of,  is 
this;  that  no  such   evidence  shall   be  brought^  rohich   ex  nalura  rei, 


502  Of  the  Examination  of  Witnesses.         [Ch.  8. 

supposes  still  greater  evidence  behind  the  partifs  own  possession  and 
power;  for  such  evidence  is  allogelher  insufficient,  and  proves  nothing; 
for    it    carries  a  presumption    with    it,  contrary    to  the    intent,  for 
which  it  was   produced;  for,  if  the  other  greater   evidence  did   not 
make   against  the   Jiarty,  why  did   he  not  produce  it  to  the    court? 
As,  if  a  man  offers  a  copy  of  a  deed  or  will,  where  he  ougfit  to  pro- 
»      duce  the  original,  this   carries  a  presumption   with  it,  that  there  is 
something   more  in  the   deed  or  will,  that  makes  against  ti)e  party, 
or  else  he   would   have   produced  it;  and  therefore  the  proof  of  a 
copy,  in  this  case,  is  not  evidence,  and  cannot  possibly  weigh  any 
thing  in  a  court  of  justice."     This  reasoning   cannot  justly  be  ap- 
plied  to  the  subject   now   under  discussion;  which   is  merely  this, 
whether  the  cross-examining  counsel  may  ask  a  witness,  whether 
he   has   written    any  letter,  giving   an  account   different   from  that 
which  he  has   given  in  his  examination  in  chief.     For  the  question 
here  proposed,  or  the  witness's  answer,  (whether  his  answer  be  in 
the  affirmative  or  in  the  negative,)  cannot  justly  raise  any  presump- 
tion, that  the  original  letter  is,  at   the  time  of  the  trial,  or  ever  has 
been,  in  the  possession  or  power  of  the  parly,  against  whom  the  wit- 
ness appears;  and  the  non-production  of  the  witness's  letter  cannot 
justly  be  imputed  to  the  party  as  matter  of  suspicion,  when  it  does 
not  appear,  whether  any  such  letter  was  ever  written,  or  to  whom 
written,  or  at   what   time,  or   under   what   circumstances.     If  the 
witness  denies,  that  he  ever  wrote  a  different  statement,  then   the 
cross-examining  counsel  cannot   impeach  his  evidence   by  calling 
another  witness  to  speak  to  the  contents   of  the  letter,  because,  in 
this  case,  the  witness  and  the  parly  are  at  issue  as  to  liie  contents, 
and  the  original  letter  must  be  produced,  or  its  loss  satisfactorily 
proved,  otherwise,  it  must   be  presumed,  in  justice  to  the  witness, 
that  the  letter,  if  produced,  would   not  contradict   his  testimony. 
But  if,  on  the  other  liand,  the  witness  confesses,  that    he  has  writ- 
ten a  contradictory  statement,  and  cannot  satisfactorily  explain  the 
contradiction,  surely  such   an   admission    (being,  in  some  degree, 
against  his  own.  character,  and,  therefore,   against  his   own  inter- 
est,) will  be  quite  as  satisfactory  and  convincing,  upon  this  point, 
as  the  letter  itself  could  be;  and  it  cannot  reasonably  be  presumed, 
that  the  letter,  if  produced,  would  corroborate  the  statctnent,  which 

(1)  Gilb.  Er.  13. 


Ch.  8.]  Of  the  Examination  of  Witnesses,  503 

the   witness    made   in  his   examination   in  chief,   when  he  himself  Contradictorj 

,  •  •         L      I  •  c       •  rpi  1  Statements. 

negatives  such  a  supposiiion  by  his  own  contession.      1  he  general 

rule,  therefore,  that  the  best  evidence  is  to  be  produced,  which  the 
nature  of  the  thing  admits,  is  to  be  understood  as  applying  to 
deeds  and  agreements,  which  form  part  of  the  issue,  or  which  are 
material  to  theissuc — to  written  notices  to  quit,  in  an  action  of  eject- 
ment, on  the  expiration  of  a  yearly  tenancy — to  letters  written  by 
either  party  to  the  suit., — and  to  other  instances  of  a  similar  kind: 
in  which  cases,  the  non-production  of  the  writing  may  afford  well- 
grounded  suspicion  against  the  party,  who  would  inquire  into  its 
contents;  but  it  is  submitted,  for  the  reasons  before  mentioned, 
that  the  rule  cannot  apply  to  the  question  now  under  considera- 
tion; and  it  certainly  has  not  been  so  applied  either  by  Chief  Bar- 
on Gilbert  or  Mr.  Justice  Buller,  who  have  fully  entered  into  the 
reason  and  principle  of  the  general  rule. 

Again,  if  the  rule  is,  as  argued  on  the  other  side,  that  a  witness 
cannot  be  questioned,  as  to  some  different  statement  supposed  to 
have  been  written  by  him,  how  is  it  that  a  witness  may  be  ques- 
tioned, on  tlie  voire  dire,  as  to  his  taking,  under  some  written 
agreement,  an  interest  in  the  event  of  the  suit;  for,  as  in  the 
former  case,  the  letter  would  be  the  best  proof  of  its  contents,  so, 
in  this  case,  the  written  agreement  would  be  the  best  proof  of  any 
interest  which  the  witness  may  take  under  it;  yet,  it  is  certam, 
that  such  an  examination,  as  to  the  contents  of  written  instru- 
ments, is  strictly  regular,  with  a  view  to  discover  the  interest  o(  the 
witness;  and  the  reason  for  this  seems  to  be,  because  the  opposite 
party  may  possibly  be  ignorant  of  the  existence  of  any  such  in- 
strument, and  may  not  know,  that  a  particular  witness  would  be 
called  on  the  other  side.  (1)  For  the  same  reason,  precisely, 
the  proposed  question,  as  to  the  credit  of  the  witness,  seems  to 
be  regular;  because  the  witness  may  be  a  stranger,  or,  if  known, 
may  be  unexpected;  and  the  party  against  whom  he  appears, 
may  be  ignorant  of  the   letter,  or  without  the   means  of  procuring 

(1)  If  the  witness    produces    the    in-  N.    P.  C.  434.     So,  if  the  witness  were 

•trument,    under   which   he  is  supposed  to    produce    the    letter,  on    which    he  is 

to   talte    the     interest,    the     instrument  cross-examined,  the    letter    itself  should 

itself  ought   to    be    read,   as    supplying  be    read,    as    best   proving   whether   iXt 

the    beat   proof    of    the   witness's   situ-  contents  ara    contradictory,  or  coDfirma- 

atioo.      Butler    v.   Carrer,   2   Starkie,  torjr  of  hit  evidence- 


504 


Of  the  Examination  of  Witnesses.         [Ch.  8. 


Contradictory  it,  or  may  have  no  reason  to  suppose,  that  anv  such  letter  could  be 

statements^  ^^g^jgj_ 

If  the  argument  on  the  other  side  can  be  maintained,  it  would 
not  be  allowable,  in  cross-examination,  to  ask  an  accomplice,  or 
other  witness,  who  appears  against  a  person  on  a  criminal  prosecu- 
tion, whether  he  has  not  been  himself  tried  for  some  offence;  for 
it  miglit  be  objected,  with  as  much  reason,  that  the  fact  of  his  hav- 
ing been  tried  for  such  an  offence  is  partly  matter  of  record,  and 
therefore  not  to  be  proved  without  the  record,  which  is  the  highest 
species  of  proof;  yet  such  questions  are  continually  asked,  and  it 
has  not  been  the  practice  to  disallow  them,  merely  on  the  ground, 
that  the  witness's  answer  is  not  the  best  evidence  of  the  fact,  that 
can  be  produced.  For  these  reasons,  it  may  be  said,  the  general 
rule,  respecting  the  production  of  the  best  evidence,  appears  not  to 
be  applicable  to  the  question  here  considered. 


2.  Supposed 
hardship. 


Lastly,  with  respect  to  the  supposed  hardship  and  unfairness  of 
subjecting  a  witness  to  such  cross-examination,  when  be  may  have 
forgotten  the  particulars  of  hislelter,  and  erroneously  may  suppose, 
that  it  represented  the  transaction  in  a  manner  different  from  what 
he  has  represen  ted  it  in  his  evidence,  it  may  be  observed,  that  such 
a  case,  if  not  impossible,  is  at  least  not  probable;  for  it  is  difficult 
to  conceive,  that  a  witness  of  the  weakest  understanding  could  be 
persuaded  to  believe,  that  he  has  made  different  statements,  when, 
in  fact,  his  statements  have  always  been  the  same.  But,  if  such 
an  improbable  case  should  occur,  it  would  not  occasion  any  embar- 
rassment to  a  witness  of  character,  who  has  no  design  to  disguise 
or  misrepresent.  Whatever  observations  can  fairly  be  made,  on 
behalf  of  a  witness  in  such  a  situation,  will  be  suggested  by  the 
Court;  and  the  jury  will  have  the  means  of  judging,  whether  the 
difference  of  statement  arise  from  mere  mistake,  or  from  an  inten- 
tion to  deceive. 


Re-examina- 
tion as  to 
former  state 
ments. 


As  the  object  of  cross-examining  a  witness,  respecting  a  former 
statement,  supposed  to  have  been  made  by  him,  is  to  impeach 
the  truth  and  credit  of  his  testimony;  so,  on  the  other  hand, 
the  object  of  the  re-examination  is,  to  give  him  an  opportunity 
of  showing  the  consistency  of  his  statements,  and   of  vindicating 


Ch.  <].]         Of  the  Examiuation  of  Witnesses.  505 

his  character.     Upon  this  subject,  it  is   material  to  consider,  how  Contradictorj 

'  .  "  c     \  statements. 

far  the  witness  may  be  re-examined    as  to  other  parts  of  the  same 

statement.  If  that  whicli  the  witness  has  stated,  in  answer  to  the 
question  on  his  cross-examination,  arose  out  of  the  enquiries  of  the 
person,  wi;h  uhoin  he  had  the  conversation,  the  witness  may  be 
asked  in  the  re-examination  what  those  inquiries  were.  (1)  He 
may  also  be  asked,  what  induced  him  to  give  to  that  person  the 
account,  which  he  has  stated  in  the  cross-examination.  (I)  The 
general  lule  is,  that  counsel  have  a  right,  upon  re-examination,  to 
ask  all  questions  which  may  be  proper  to  draw  forth  an  explana- 
tion of  the  sense  and  meaning  of  the  expressions  used  by  the  wit- 
ness on  cross-examination,  if  they  be  themselves  doubtful;  and  al- 
so an  explanation  of  the  motive,  by  which  the  witness  was  induced 
to  use  those  expressions;  he  ha^  no  right  to  go  further,  and  to  in- 
troduce matter  new  in  itself,  and  not  suited  to  the  purpose  of  ex- 
plaining either  tlie  expressions  or  the  motive  of  the  witness.  (1) 
And  as  many  things  may  pass  in  one  and  the  same  conversation, 
relating  to  the  subject  of  the  conversation,  which  yet  do  not  relate 
to  his  motive,  or  to  the  meaning  of  his  expressions,  the  counsel  are 
not  entitled  to  re-examine  to  such  parts  of  the  conversation. 

A  distinction  is  to  be  made  between  a  conversation,  which  a 
witness  may  have  had  with  a  farly  to  the  suit^  and  a  conver- 
sation with  a  third  person.  ^  The  conversations  of  a  party  to 
the  suit,  relative  to  the  subject-matter  of  the  suit,  are  in  them- 
selves evidence  against  him  in  tlie  suit,  and  if  a  counsel  chooses 
to  ask  a  witness  as  to  any  thing  that  may  iiave  been  said  by 
an  adverse  party,  the  counsel  for  that  party  has  a  right  to  lay 
before  the  court  the  whole  that  Vv^as  said  by  his  client  in  the 
same  conversation  ;  not  only  so  much  as  may  explain  or  qualify 
the  matter  introduced  by  the  previous  examination,  but  even 
the  matter  not  properly  connected  with  ihp  part  introduced 
upon  the  previous  examination,  provided  only  that  it  relate  to 
the  subject-matter  of  the  suit  ;  because  it  would  not  be  just 
to  take  part  of  a  conversation,  as  evidence  against  a  party, 
without  giving   to   the     jiarly   at    the  same    time   the    benefit   of 

(1)  See  the  account  of  the  procee-  idence,  in  the  case  of  the  witness 
dings  in  the  House  of  Lords,  above  Giuseppe  Sacchi.  2  Brod.  &  Ring, 
referred  to,  p.   453,  454,  of  printed  ev      294,  S   P. 

Vol.   I.  39 


S06 


Of  the  Examination  of  f Fitnesses.        [(.'h.  8. 


Coptrrifiictory  the  entire  residue  of  what  he  said  on  the  same  occasion.  But  the 
statements.  .  -  .  •  i  i  •  •  .  ■  •  ir  • 
conversation  oi  a  witness  with  a  third  person  is  not  in  itseJi  evi- 
dence in  the  suit  against  any  party  to  the  suii;  it  becomes  evi- 
dence only  as  it  may  affect  the  character  and  credit  of  the  witness, 
which  may  be  aff'ected  by  his  antecedent  declarations,  and  by  the 
motive  under  which  he  made  them;  but  when  once  all  that  had 
constituted  the  motive  and  inducement,  and  all  that  may  show 
the  meaning  of  the  words  and  declarations,  has  been  laid  before 
the  court,  the  court  becomes  possessed  of  all  that  can  affect  the 
character  or  credit  of  the  witness,  and  all  beyond  ibis  is  irrelevant 
and  incompetent,* 

Evidence  in  In  answer  to  the   evidence  of  coiitradicioiy  statements,  and  for 

character.         ^^^^   purpose    of   corroborating     the    testimony    of   the    witness, 

whose  veracity    has   been    thus  impeached,  it    seems    reasonable 


*  The  question  proposed  to  the  Judges  is  not  here  inserted,  because  it  is  at  once 
so  abstract  and  particular,  as  not  to  be  of  much  general  importance.  The  rea- 
sons, above  stated,  are  selected  from  the  judgment  of  the  Lord  Chief  Justice. 
Some  difference  of  opinion  occurred  on  this  subject  among  the  Judges.  Mr.  Jus- 
tice Best  differed  in  opinion  from  the  other  Judges;  the  Lord  Chancellor  also,  and 
Lord  Redesdale  were  of  a  different  opinion.  Blr.  Justice  Best  held,  that  each  of 
the  proposed  questions  should  be  answered  in  the  afhrmative.  His  reasoning  ap- 
pears to  have  been  to  the  following  effect.  The  rule,  which  is  acknowledged  to 
have  been  settled  with  regard  to  the  statements  or  conversations  of  a  ps?-?!/ /o /Ae 
suit,  applies  with  equal  reason  and  force  to  ihe  statem^ts  and  conversations  of  a 
witness-  As,  in  the  former  case,  if  some  part  of  the  conversation,  in  which  the  par- 
ty has  been  engaged,  is  brought  forward,  by  the  cross-examination,  against  that  par- 
ty, the  whole  of  the  conversation  may  be  properly  enquired  into,  on  the  re-examina- 
tion; so,  in  the  latter  case  also,  if  one  part  of  the  conversation  of  a  witness  has 
been  drawn  from  him  by  cross-examination,  \i'ith  the  view  of  disparaging  his  tejti- 
mony,  the  whole  of  what  passed  in  that  conversation  ought  to  be  admitted  on  the  re- 
examination. This  is  justly  due  to  the  clniiacier  of  the  witness,  who,  having  been 
attacked  on  the  one  side,  is  entitled,  iu  vindication  of  his  character,  to  have  the  en- 
tire conversation  fairly  and  fully  detailed  in  evidence:  it  is  due  to  him  also  as  a  pro- 
tection and  security  against  proceedings,  which  might  otherwise  be  instituted 
against  him,  on  statements  partially  extracted  l»y  cross-examination.  The  witness 
cannot  have  a  complete  opportunity  of  explaining  his  motives,  unless  every  part  of 
the  conversation  may  be  enquired  into;  lie  may,  in  his  cross-examination,  have  as- 
signed some  reason  or  motive  for  what  he  said  in  one  part  of  the  conversation,  be- 
lieving that  reason  or  motive  to  be  the  only  one,  which  operated  upon  his  mind; 
yet,  perhaps,  if  some  other  part  of  the  conversntion  should  be  suggested  to  him  in 
his  re-examination,  he  may  instantly  discover,  that  some  other  tnolive  also  influen- 
ced him,  or  that  what  he  said  had  been  by  F0ti;e  oiher  incident,  not  b<>fore  adverted 
to  in  the  former  examination.  But  although  the  entire  cotsversation  ought  to  be 
admitted,  it  is  never  to  be  adniilted  as  evidence  of  any  fact  that  may  have  beeri  as- 
serted in  the  course  of  the  conversation,  but  solely  and  simply  as  explanatory  of  the 
witness's  motives,  and  as  setting  his  chiiracter  and  credit  in  a  fair,  full,  and  impar- 
tial point  of  view. 


Ch.  8.]         Of  the  Excuninaiion  of  Witnesses.  307 

to  be  allowed  to  show,  that  he  is  a  man  of  the  strictest  integrity,  Character, 
and  of  scnipiiloiis  regard  to  truth. 

Ch.  B.  Gilbert  was  of  opinion,  that  the  party,  who  called  the  Former  state- 
witness,  might  show,  that  he  affirmed  the  same  thing  before  on 
other  occasions,  and  that  he  is  still  consistent  with  himself.  (1) 
This,  however,  has  been  doubted,  and  with  good  reason.  Mr. 
Justice  Buller  lays  it  down,  that  such  evidence  is  clearly  not  ad- 
missible in  chief,  and  it  seems  doubtful,  he  adds,  whether  it  is  so  in 
reply.  (2)  And  Lord  Ch.  Justice  Eyre  is  represented  as  having 
rejected  such  evidence,  even  when  offered  on  behalf  of  a  defend- 
ant, in  a  prosecution  for  perjury.* 

It  may  be  observed,  on  this  kind  of  evidence  in  general,  thai  Remark, 
a  representation  without  oath  can  scarcely  be  considered  as  any 
confirmation  of  a  statement  upon  oath.  It  is  the  oath  that  con- 
firms; and  the  bare  assertion,  that  requires  confirmation.  The 
probability  is,  that  in  almost  every  case  the  witness  who  swears 
to  certain  facts  at  the  trial,  has  been  heard  to  assert  the  same 
facts   before  the  trial;    and   it  is   not   so  much  in   support  of  his 

(1)    Gilb.    Ev.    135.      See    LiUterel  where   this   confirmatory  evidence   was 

V.   Reynell,    1    Mod.    282,    and    Sir   J.  oflered    in     chief;     which    would     not 

Freind's    case,    4    St.    IV.    613.       13  now   be   allowed. 

Howell's  St.    Tr.   32,   S.   C,  and  Har-  (2)  Bull.  N.  P.  294. 
rison's  case,  12  Howell's   St    Tr.    861, 


♦  So  said  by  Lord  Redesdale,  in  the  Berkeley  peerage  case,  5th  June,  1811. 
The  occasion  of  the  discussion,  which  took  place,  was  as  follows:  One  of  the  peers 
enquired  of  a  witness,  who  had  been  cross-examined  and  re-examined,  as  to  state- 
ments made  by  Lady  Berkeley,  on  a  former  occasion,  respecting  her  supposed  mar- 
riage. The  Solicitor-general  suggested  to  the  Committee,  whether  this  was  the 
regular  course  of  proceeding,  and  stated  what  he  conceived  to  be  the  general  rule 
upon  the  subject.  The  admissibility  of  the  former  statements  was  then  mtich  dis- 
cussed. After  tlie  arguments  of  counsel  on  both  sides,  Lord  Redesdale  said,  he 
had  alwaj'S  understood,  that,  for  the  purpose  of  impugning  the  testimony  of  a  wit- 
ness, his  declarations  at  another  lime  might  be  enquired  into,  but  not  for  the  pur- 
pose of  confirming  his  evidence.  And  the  Lord  Chancellor  expressed  his  decided 
opinion,  that  this  was  the  true  rule  to  be  observed  by  the  counsel  in  the  cause;  but 
considering  the  House  as  in  some  degree  standing  both  in  the  situation  of  the  coun- 
sel for  the  claimant,  and  of  the  counsel  against  the  claimant,  he  was  of  opinion,  that 
the  question  might  be  properly  asked  by  the  House,  though  it  could  not  be  a^ked 
by  the  counsel  on  one  side;  but  with  respect  to  the  answer  to  the  question,  it  might 
be  the  subject  of  future  consideration,  whether  it  ought  to  stand  upon  the  iiiinules 
as  evidence.  The  question  respecting  the  former  representations  of  Lady  Berke- 
ley was  therefore  repeated  by  one  of  the  Lords,  and  the  answer  entered  among  the 
minutes,  subject  to  future  revision.     !\!S. 


508  Of  the  Examination  of  Witnesses.       [Ch.  8. 

character,  that  he  iias  given  the  same  account,  as  it  would  be  to 
his  discredit,  that  he  should  ever  have  made  one  different.  The 
imputation  on  his  veracity  results  from  the  fact  of  his  having  con- 
tradicted himself,  and  this  is  not  in  the  least  controverted  or  explain- 
ed by  the  evidence  in  question.  If  a  witness  has  made  a  statement 
a  hundred  times  in  one  way,  and  a  hundred  times  in  another  way 
directly  contrary,  ihe  only  inference  must  be,  tliat  he  is  utterly  des- 
titute of  all  title  to  credit.  In  one  point  of  view,  a  former  state- 
ment by  the  witness  appears  to  be  admissible,  in  confirmation  of 
his  evidence;  and  that  is,  where  the  counsel  on  the  other  side  im- 
pute a  design  to  misrepresent,  from  some  motive  of  interest  or  re- 
lationship; there,  indeed,  in  order  to  repel  such  an  imputation,  it 
might  be  proper  to  show,  that  the  witness  made  a  similar  state- 
ment at  a  time  when  the  supposed  motive  did  not  exist,  or  when 
motives  of  interest  would  have  prompted  him  to  make  a  different 
statement  of  the  facts. 

Character  of  If  an  attesting  witness  to  a  will  or  deed  impeach  its  validity  on 
the  ground  of  fraud,  and  accuse  other  subscribing  witnesses,  who 
are  dead,  of  being  accomplices  in  the  fraud,  the  party,  claiming  un- 
der the  instrument,  may  give  evidence  of  their  general  good  char- 
acter. For,  if  living,  they  might  be  produced  as  wilnessey,  and 
iheir  character  might  then  be  the  subject  of  examination;  and,  af- 
ter their  death,  an  opportunity  ought  to  be  given,  to  show  what 
credit  is  to  be  attached  to  their  attestation. (I)  The  only  mode  left, 
in  such  a  case,  of  doing  justice  to  the  person  impeached,  is  by  en- 
quiring into  his  general   character. 

In  the  common  case,  where  a  witness  for  the  plaintiff  asserts  one 
thing,  and  a  witness  for  the  defendant  asserts  another,  and  direct 
fraud  is  not  imputed  to  either,  evidence  to  general  character  is  not 
admissible.  (2)  {w) 


attesting  wit- 
ness deceased. 


A  party  cannot      A  party  will  not  be  permitted   to  produce  ^eneraZ  evidence,  to 
discredit  his 
own  witnessi. 


discredit  his      ^jg^j.^j;j    j^jg  q.^^    witness.  (3)     "This,"   says   Mr.    J.    Buller, 


(1)  Doe  dem.   Walker   v.    Stephen-  (2)    Bp.    of    Durham    v.    Beaumont, 

son,  3  Esp.  N.   P.  C   284.     4  Esp.    N.  1  Campb.  207. 

P.    C.    50;     cited    and    approved     in    I  (3)   Bull.  N.  P.  297. 
Campb.  210. 


(tf)  See  Note  533,    p.  771. 


CIi.  8.1  Of  the  Examination  of  Witnesses.  309 

"  would  enable  him  to  destroy  the  witness,  if  he  spoke  against  him, 

and  to  make^  him   a   good  witness  if  he  spoke  for  him,  with   the 

means  in'  his  hand   of  destroying  his    credit,  if  he  spoke   against 

him."(l)     The  meaning  of  this  rule  is,  that  a  party  cannot  prove  l.  By  proof  of 

his  own    witness  to  be  of  such  a  general  bad  character,  as  would         character. 

render  him  unworthy  of  credit. 

But  if  a  witness  state  facts  against  the  interest  of  the  party  that  Facts  may  bo 
11    J  I  •  I  •  1  11     ,  1        I  proved  other- 

called  him,  anotlier  witness  may    be  called  by  the   same   party   to  wise. 

disprove  those  facts:  "  for  such  facts  are  evidence  in  the  cause, 
and  the  other  witness  is  not  called  directly  to  discredit  the  first,  but 
the  impeachment  of  his  credit  is  incidental  only,  and  consequen- 
tial."(2)  The  object  of  such  evidence  is  to  correct  some  suppos- 
ed mis-statement,  or  to  rectify  an  error;  and  if  such  evidence  were 
to  be  excluded,  the  consequences  would  be  most  injurious  to  the 
administration  of  justice,  as  well  in  criminal  as  in  civil  cases. 
On  the  trial  of  an  action,  therefore,  where  the  question  was, 
whether  the  defendant's  servant,  who  had  been  employed  to  sell  a 
horse,  had  warranted  Jiim  sound,  and  the  servant  swore,  on  being 
called  by  the  plaintiff,  that  he  had  not  given  any  warranty,  Lord 
Ellenborough  allowed  the  plaintiff  to  call  another  witness  to  prove, 
that  at  the  time  of  the  sale,  the  servant  had  expressly  warranted 
its  soundness.  There  can  be  no  rule  of  law,  said  Lord  Ellenbo- 
rough, by  which  the  truth  on  such  an  occasion  is  to  be  shut  out, 
and  justice  perverted.  (3) 

It  would  not,  however,  be  competent  to  a  parly,  in  general   to  ^-  ^^  P''°°''  °^ 

1     .  V  1.       I  •  •!  •  ,       .    '         contradictory 

prove,  that    a  witness   who   has  given   evidence  against   the  inter-  statement. 

ests  of  that  party,  has  been  heard   at  other  times  to  make  a  dif- 
ferent  representation.      The  earlier  statement,    it  is  clear,  cannot 
upon    any    principle,  be    substituted    as    legitimate    proof  of  the 
fact    therein    affirmed,    in  the  place  of   the  statement    delivered 
upon  oath   in   the   cause.     Nor   does   it   appear  to  be  admissible 
merely  for  the  purpose  of  neutralizing  or  destroying   the  effect  of 

(1)  Bull.  N.  P.  297.  N.   p.    C.  334.     Ewer   v.     Ambrose    3 

(2)  Bull.    N.    P.    297.     3   Barn.     &  Barn.  &   Cress.    749.     See  also  Lowe, 
Cress.  750,  751.  v.  Joliffe,  and    Pike  v.  Badmering,    gta- 

(3)  Alexander   v.    Gibson,  2  Campb.  ted  infra.  Part  II.  ch.  8,  sect.  2. 
656.     Richardson    v     Alan,   2   Starkie, 


310  Of  the  Examination  of  Witnesses.       [Ch.  8. 

the  latter  unfavorable  statement;  for,  generally  speaking,  any  ear- 
lier statement,  which  may  have  been  made,  out  of  the  cause,  is 
entitled  (o  much  less  weight  than  a  subsequent  statement,  upon 
oath,  in  the  cause,  and  in  the  presence  of  an  opposite  party,  armed 
with  the  power  of  cross-examination.  And  one  objection  to  such 
evidence  is,  that  it  would  generally  lead  into  a  long  collateral  en- 
quiry, which,  after  all,  would  seldom  end  in  any  certain  or  satis- 
factory result.  A  party,  complaining  of  a  supposed  mis-statement 
of  his  witness,  will  always  be  at  liberty  to  correct  such  mis-state- 
ment; but  this  is  most  directly  and  effectually  done,  and  in  a  man- 
ner most  convenient  for  the  administration  of  justice,  by  producing 
other  evidence  as  to  the  facts  or  circumstances  supposed  to  be  mis- 
represented.* 

Answer.  ]n  the  case  of  Ewer  v.  Ambrose,  before  referred  to, (I)  a  witness 

having  been  called  on  the  part  of  the  defendant,  to  prove  a  part- 
nership between  himself  and  the  defendant,  ^xid  having  denied 
that  fact,  an  answer  of  the  witness  in  chancery  was  offered  in  evi- 
dence by  the  defendant's  counsel,  and  admitt^.  But  the  Court  of 
King's  Bench  were  of  opinion,  that  this  answer  was  clearly  not 
admissible  for  the  purpose  of  showing  generally  that  the  witness 
was  unworthy  of  credit;  and  they  considered  it  very  unquestiona- 
ble, whether  it  could  be  properly  received,  to  prove  a  different  state 
of  facts  from  that  w4iich  the  witness  had  sworn  to  at  the  trial,  {z) 

Deposition.  l[j  Oldroyd's  case,  (2)   one  of  the  witnesses,  whose  name    was 

on  the  back  of  the  indictment,  not  having  been  called  on  the 
part  of  the  prosecution,  on  account  of  a  strong  suspicion  of 
being  an    accomplice  with    the  prisoner, — the  Judge  directed  that 


(1)    Barn.  &  Cress.  746. 


(2)  lluss.  &  Ry.  Cr.  C.  89. 


•  On  the  impeachment  of  Warren  Hastings,  a  witness,  called  by  the  managers, 
appearing  to  them  to  give  his  evidence  less  distinctly  than  when  examined  before 
the  House  of  Commons,  was  interrogated  as  to  tho  tenor  of  his  evidence  on  the 
former  occasion.  The  defendant's  counsel  objected  to  this  course  of  examination; 
and  the  Lords,  after  argument,  and  much  deliberation,  determined  that  the  ques- 
tion was  irregular.  The  witness's  name  was  Bean;  the  question  occurred  on  the 
29th  Feb-  1788.     See  Mill's  History  of  British  India,  vol.  iii.  p  64. 


(2)  See  Note  536,  p.  781. 


Ch.  9.j  OJ  Bills  of  Except  ions,  ^c.  31  i 

ibis  witness  should  be  examined;  and  as  the  evidence  of  the  wit- 
ness materially  differed  from  a  deposition  taken  before  the  coroner, 
the  Judge  ordered  that  this  deposition  should  be  read  in  evidence, 
for  the  pur|)Ose  of  impeaching  the  credit  of  the  witness  at  the  trial. 
And  all  the  Judges,  on  considering  the  case,  were  of  opinion,  that 
it  was  competent  for  the  Judge,  under  the  circumstances,  to  order 
the  deposition  lo  be  read  for  such  purpose.  And  Lord  Ellenbo- 
rough  C.  J.  and  Mansfield  C.  J.  thought,  that  the  prosecutor  had 
the  same  right  to  call  for  a  deposition,  in  order  to  impeach  the 
credit  of  a  witness,  who  on  the  trial  contradicted  what  he  had  be- 
fore deposed,  (o) 


CHAP.  IX. 

Of  Bills  of  Exceptions^  and  Demurrers  to  Evidence. 

The  competency  of  witnesses  and  the  admissibility  of  evidence  Billofexcep- 
are  to  be  decided  by  the  Judge  who  tries  the  cause,  and  from  his 
judgment  there  is  an  appeal  by  a  bill  of  exceptions.  An  appeal 
also  may  be  made,  in  the  same  manner,  from  the  direction  or  opin- 
ion of  the  Judge,  as  to  the  sufficiency  of  the  evidence  to  maintain 
the  plaintiff' 's  claim.  (1) 

At  common  law,  a  writ  of  error  could  not  be  brought  for  any 
error  in  law,  which  did  not  appear  on  tlie  record;  and  therefore, 
where  the  jjlain'.ifF  or  defendant  alleged  any  thing  ore  tenus,  which 
was  oveirided  by  the  Judge,  the  party  aggrieved  had  no  re- 
dress. (2)  To  remedy  this  defect,  it  was  enacted  by  stat.  13  Ed.  1,  ^^  Ed.  1. 
ch.  31,  '•  if  one  impleaded  before  any  of  the  justices  allege  an  ex- 
ception, praying  ihat  the  justices  will  allow  it,  that,  if  they  will 
not,  and  if  he  write  the  exception,  and  require  the  justices  to  put 
their  seals  to  it,  the  justices  shall  do  so,  and  if  one  will  not,  anoth- 
er shall."  {b) 

This  statute  extends  to  the    plainiifi' as  well   as   to  the   defend-  Whether  in 
ant,  (3)  (c)  and  to  a  trial  at  bar  as  well  as  at  nisi  prius.(4)(rf)      But  ''"'"•°^' «^se«- 

(1)1  Bl.icU.  Rep.  5.56.     Cowp.  161.  (2)  2  Inst.  426- 

As  to  the  gener:il    nature  of  bills  of  e.\-  (3)   2  Inst.  427. 

ceptions,  see    Bull.  N.  P.  316,  Tidd   Pr.  (4)  Thurston     v.    Slatford,     3   Salk. 

311.  155;  Adm.     per   Cur.    in     Duchess   of 


(a)  See  Note  537,  p.  782.     (J)  See  Note  538,  p.  782.     (c)  See  Note  539,  p.  783. 
(d)  See  Note  540,  p.  783, 


312 


0/  Bills  of  Exceptions, 


[Ch.  9. 


it  has  been  doubted,  whether  it  extends  to  criminal  cases.  Lord 
Coke,  in  his  exposition  of  the  statute,  states,  that  it  extends  to  all 
actions,  real,  personal,  and  mixed:  but  of  criminal  cases  he  makes 
no  mention.  In  the  case  of  Sir  H.  Vane,  (1)  who  was  tried  for  high 
treason,  the  Court  refused  to  sign  a  bill  of  exceptions,  "  because," 
they  said,  "  criminal  cases  were  not  wiihin  the  statute,  but  only  ac- 
tions between  party  and  party,"  From  this  authority,  Mr.  Serjt. 
Hawkins  infers  only  that  a  bill  of  exceptions  is  not  allowable  on  an 
indictment  for  treason  or  felony.  (2)  "  Whether  a  bill  lies  not  in 
any  criminal  case,"  said  Lord  Hardwicke,  "  is  a  point  not  set- 
tled." (3)  It  was  allowed  in  the  case  of  tiie  King  against  Lord 
Pagot  and  others,  on  an  indictment  for  a  trespass,  (4)  and  also  on 
an'  information  in  the  nature  of  a  quo  warranto.  (5)  But  Lord 
Hardwicke,  in  the  case  before  referred  to,  after  saying  "  that  he 
had  known  a  bill  of  exceptions  allowed  in  informations  in  the 
Court  of  Exchequer,  which  are  civil  suits  for  the  king's  debts," 
added,  "  It  has  never  been  determined  to  lie  in  mere  criminal  pro- 
ceedings in  other  courts.  (6)(e) 


Quarter 
sessions. 


A  bill  of  exceptions  cannot  be  allowed  by  the  justices  of  the 
peace  at  the  quarter  sessions,  on  the  hearing  of  an  appeal  against 
an  order  of  removal.  (7)  (/)  It  can  be  used  only  on  a  writ  of  er- 
ror, and  therefore  where  a  writ  of  error  will  not  lie,  there  cannot 
be  a  bill  of  exceptions.  (8)  (g)  And  on  the  trial  of  a  feigned  issue 
out  of  a  Court  of  Chancery,  a  party  is  not  entitled  to  a  bill  of  ex- 
ceptions. (9)  (/i) 


When  ten- 
dered. 


A  party  cannot  avail  himself  of  a  bill  of  exceptions,  unless 
he  insist  upon  the  exception  at  the  trial.  If  he  waves  it,  he 
acquiesces,  and  cannot  resort  back  to  the  exception  after  a  ver- 
dict. The  statute  appoints  not  any  precise  time  for  tendering  a 
bill  of  exceptions;  but   the   nature   and   reason  of   the   thing  re- 


Grafton   v.    Holt,     Sldn.    354.      R.  v. 
Snnith,  2  Show.  287,  contra. 

(1)  1  Lev.  6S;  Kel.    15,  S-  C.  1  Sid. 
65,  S.  C. 

(2)  PI.  Ci.b.  2,  c.  46,  s.  210. 

(3)  R.   V.     Inhabitants    of   Preston, 
Rep.  temp.  Hard.  251. 

(4)  1  Leon.  5. 

(5)  R.    V.     Higgins   and     others,    1 
Ventr.    366.     See   also   R.    v.    Nutt,  1 


Barnardist.    307,   a     prosecution   for   a 
libel. 

(6)  Rep.  temp.  Hard.  251.  R.  v. 
Stratlon  and  others,  21  Howell's  St. 
Tr.  1187. 

(7)  See  (2,)  supra. 

(8)  Bull.  N.  P.  316. 

(9)  Bullen  v.  Mitchel,  2  Price,  416. 
Wood,  B.  dissent. 


(e)  See  Note  541,  p.  783.     (/)  See  Note  542,  p.  784.    (i-)  See  Note  543,  p.  784. 
(A)  See  Note  544,  p.  785. 


b 


Ch.  9.]  a7id  Demurrers  to  Evidence.  313 

quires,  that  the  exception  should  be  reduced  to  writing,  when 
taken  and  disalioweil:  not  that  the  exception  need  be  drawn  up 
in  form;  but  the  substance  must  be  reduced  to  writing  while  the 
thing  is  transacting,  because  it  is  to  become  a  record.  (1 )  (i) 

When  a  bill  of  exceptions  has  been  tendered,  the  Court  will  not 
grant  a  motion  for  a  new  trial,  unless  the  bill  of  exceptions  be 
abandoned.  (2)  (j)  And  if  a  party,  who  has  tendered  a  bill  of  ex- 
ceptions, bring  a  writ  of  error,  before  he  has  procured  the  Judge's 
signature,  he  thereby  waives  the  bill  of  exceptions,  and  will  not 
be  permitted  afterwards  to  tack  or  append  the  bill  to  the  urit  of 
error.  (3)  (/b) 

A  demurrer  to  evidence  is  a   proceedina:,  by  which   the   iudaes,  Demnrrerta 
,  .   '  .     °      ;,  J      &     '  evidence 

whose  provmce  it  is  to  determine  questions  of  law,  are  called  upon 

to  declare,  what  the  law  is  upon  the  facts  in  evidence.     And  it  is 

analogous  to  the  demurrer  upon  facts  alleged  in  pleading.  (4) 

When  the  admissibility  of  the  evidence  has  been  established,  ^^j"' *'• 
the  question,  how  far  it  conduces  to  the  proof  of  the  facts,  which 
are  to  be  ascertained,  is  not  for  the  Judge  to  decide,  but  for  the 
jury  exclusively.  And  when  the  jury  have  ascertained  the  fact, 
if  a  question  arises,  whether  the  fact  thus  ascertained  maintains 
the  issue  joined  between  the  parties,  or,  in  other  words,  whether 
the  law  arising  upon  the  fact  is  in  favor  of  one  or  other  of  the  par- 
ties, that  question  is  for  the  Judge  to  decide.  (5)  Ordinarily,  he 
declares  to  the  jury,  what  the  law  is  upon  the  fact  which  they  find, 
and  then  they  compound  their  verdict  of  the  law  and  fact.  But  if 
the  party  wishes  to  withdraw  from  the  jury  the  application  of  the 
law  to  the  fact,  and  all  consideration  of  what  the  law  is  upon  the 
fact,  he  then  demurs  in  law  upon  the  evidence.  (6) 

It  is  reasonable,  that  either  party  should  have  such  a  power 
of  referring  to  the  Court  to  decide,  what  the  inference  of  law  is 
upon  the  facts;    as  the  jury   may  refuse  to  find   a  special    verdict, 

(1)  By  Holt,  C.  J.  Wright  v-  in  Gibson  and  Johnson  v.  Hunter  2 
Sh.iipe ,  1  Salk.  288.  H.  Bl.  205,  206.  * 

(2)  2  Chit.    Rep.  272.  (5)  2  H.  Bl.  205. 

(3)  Dillon  V.  Parker,  1  Bing.  17.  (6)  2  H.  Bl.  206.     2  Barn.  &  Croas. 

(4)  See  the  judgment  of  Eyre,  C.J.      443 


(t)  See  Note  545,  p.  786.     (;)  See  Note  546,  p.  795.    (&)  See  Note  647.  p.  795. 
\r^,       T  An  •^ 


Vol.  I.  40 


514  Of  Bills  of  Exceptions,  [CIi.  9. 

What  ii  nd-  in  U'hlcli  case  the  facts  woulc!  not  appear  On  the  record.  On  the 
other  hand,  as  it  is  the  peculiar  province  of  the  jiir}'  to  ascertain 
the  truth  of  facts  and  the  credibihty  of  witnesses,  the  jiarty  ought 
not  to  be  allowed,  by  a  demurrer  to  evidence,  or  any  other  means, 
to  refer  the  trial  of  such  questions  to  another  tribunal.  A  demur- 
rer must  therefore  admit  the  truth  of  all  facts,  which  the  jury 
mii^ht  find  in  favor  of  the  other  party  upon  the  evidence  laid  before 
them,  whatever  the  nature  of  that  evidence  may  be,  whether  of 
record,  or  in  writing, (1)  or  by  parol.  (2)  According  to  Alleyn's 
report  of  the  case  of  Wright  v.  Pindar,  it  was  resolved,  "that  he 
that  demurs  upon  the  evidence  ought  to  confess  the  whole  matter 
of  fact  to  be  true,  and  not  refer  that  to  the  judgment  of  the  Court; 
and  if  the  matter  of  fact  is  uncertainly  alleged,  or  it  is  doubtful 
whether  it  be  true  or  no,  because  offered  to  be  proved  only  by  pre- 
sumptions or  probabilities,  and  the  other  party  demurs  thereupon, 
he  that  alleges  this  matter  cannot  join  in  demurrer  with  him,  but 
ought  to  pray  the  judgment  of  the  Court,  that  he  may  not  be  ad- 
milted  to  his  demurrer,  unless  he  will  confess  the  snaiter  of  the  fact 
to  be  true.'^  And  now  it  is  an  established  rule,  that  in  a  demurrer 
to  circumstantial  evidence,  the  parly,  offering  the  evidence,  is  not 
obliged  to  join  in  demurrer,  unless  the  parly  demurring  will  dis- 
tinctly admit  u|)on  the  record  every  fact  and  every  conclusion > 
which  the  proposed  evidence  conduces  to  prove.  (3)  (Z) 

When  all  matters  of  fact  are  admitted,  the  case  is  ripe  for  judg- 
ment in  matter  of  law  upon  the  evidence,  and  may  then  be  prop- 
erly withdrawn  from  the  jury;  and  being  entered  on  record,  it  will 
remain  for  the  decision  of  the  Judges.  (4) 

Not  in  the  If  in  an  information,  or  any  other  suit,  evidence  be  given  for  the 


King's  case. 


King,  and  the  defendant  offers  to  demur  upon  it,  the  King's  coun- 
sel cannot  be  compelled  to  join  in  demurrer,  but  in  such  case  the 
Court  ought  lo  direct  the  jury  to  find  the  special  matter;  and  up- 
on that  they  shall  adjudge  the  law. (5) 

(1)  Baker's   case,  5  Co.    Rep.    104.  2   II.   Bl     187.      Cocksedge     v.     Fan- 

(2)  Wright    V.    Pindar,    Alleyn,    18.  shaw,    1    Doug.    119—134. 
2H.  Bl   207.  (4)  2  H.  Bl.  208. 

(3)  Gibson   and    Johnson   v.  Hunter,  (5)    5   Co     Rep.    104.      Bull.  N.  P. 

3!3. 


(i)  See  Note  548,    p.  790- 


Cli.  9. J  and  Demurrers  to  EvidetKC.  ^15 

The  whole  proceeding  upon  a  demurrer  to  evidence  is  under  tlie 
control  and  direction  of  the  Judge  at  nisi  prius,  or  of  the  Court  on 
a  trial  at  bar.  (1)  The  Court,  said  Mr.  Justice  Doddridge  in  the 
case  of  Worsley  v.  Filisker,  (2)  may  deny  and  hinder  a  party  from 
demurring,  by  overruling  the  matter  in  demurrer,  if  it  seem  to  them 
to  be  clear  in  law:  and,  in  tliat  case,  the  Court  did  overrule  the 
demurrer,  and  left  the  case  to  the  jury.  If  the  Judge  overrule  the 
demurrer  improperly,  that  may  be  made  the  subject  of  a  bill  of  ex- 
ceptions. (.3)  (w) 

Where  a  demurrer  to   evidence  is   admitted,  it  is   usual   for  the  Form  of  dmw- 

'Dg  up- 
court  or  Judge  to  give  orders  to  the  associate  to  take  a  note  of  the 

testimony:  this  should   be   signed  by   the   counsel  on    both   sides; 

and  the  demurrer  is  then  affixed  to  (he  postea.  (4) 

Upon  a  demurrer'to  evidence,   the   damages   may   be  assessed  . 

.  .  ".  '-'  •'  AssessTient  of 

conditionally  by  the  jury  before  they  are  discharged;  or  they  may  danuges. 
be  assessed  by  another  jury,  upon  a  writ  of  enquiry,  after  the  de- 
murrer is  determined.  (5) 

(1)  2  H.  Bl.  20S.  (4)  Bull.  N.  P.  313. 

(2)  2  Roll.  Rep.  119.  Bull.  N.  P.  (5)  Herbert  v.  Walters,  1  Ld.  Ray. 
S14.     2H.B1.  20S.  60.     Plowd.  410.     Doug.  222,  n. 

(S)  2  H.  Bl.  209. 


(m)  See  Note  549,  p.  79S. 


,^18 


PART  THE  SECOND. 


On  Written  Evidence. 


The  preceding  chapters  having  treated  of  the  competency  of 
witnesses,  and  of  parol  or  unwritten  evidence,  it  is  now  proposed 
10  enquire  into  the  several  kinds  of  written  evidence. 

Writings  are  either  public  or  private.  Sonne  public  writings 
are  of  record;  others  not  of  record.  And  public  writings  not  of 
record  may  be  distinguished  into  such  as  are  of  a  judicial  charac- 
ter, and  such  as  are  of  a  public  nature  but  not  judicial.  In  this 
order  it  is  proposed  to  treat  of  the  several  kinds  of  written  evidence; 
and  to  consider,  first,  in  what  cases  they  are  admissible;  secondly, 
if  admitted,  how  they  ought  to  be  proved. 

CHAP.     I. 


Records- 


Effect,  as  evi 
dence. 


Of  Acls  of  Parliament. 

Records  are  the  memorials  of  the  proceedings  of  the  legisla- 
ture, and  of  the  King's  courts  of  justice,  preserved  in  rolls  of 
parchment;  and  they  are  considered  of  such  autiiority,  that  no 
evidence  is  allowed  to  contradict  them.  (1)  Thus,  if  a  verdict, 
finding  several  issues,  were  to  be  produced  in  evidence,  the  op- 
posite party  would  not  be  allowed  to  show,  that  no  evidence  was 
offered  on  one  of  the  issues,  and  that  the  finding  of  the  jury  was 
endorsed  on  the  postea  by  mistake.  (2)  On  an  indictment  for  as- 
sisting the  escape  of  a  convict  out  of  prison,  if  the  record  of  the 
conviction  is  produced  by  the  proper  officer,  evidence  is  not  admis- 
sible to  di-pute  the  statement  in  the  record,  or  to  show  that   it  has 

(I)  Co.    Lilt.    117,   b,   260,   a.     12  221.      Glynn    v.   Thorpe,    1   Barn.     & 

Rep.    24,     25.      Doddridge's     English  Aid.    156.     Rei    v.    Hopper,    3   Price, 

Lawyer,    p     200.     Lamb.     Just.    b.    1,  495.    ' 

e.  13,  p.  71.     Glib.  Ev.  5-     Bull.    N.  P.  (2)  Roed  v.  Jackson,  I  Eajt,  S6*. 


Ch.  1 .]  Of  Acts  of  Parliarnent.  517 

never   been  filed  among  the  other  records  of  the  country;  even 
though  the  indictment  refer  to  it  with  a  proul  patet^  as  remaining 
among  those  records.  (1)     An  officer,  who   has  the  care  and  cus- 
tody of  records   may    be  examined   as    to  their  condition,  but   he  . 
cannot  be  examined  as  to  their  matter  or  contents.  (2)  (n) 

A  record,  then,  is  conclusive  proof  that  the  decision  or  judgment  *^°"clniiTo,  of 
of  the  Court  was,  as  is  there  stated;  and  evidence  to  contradict  it 
will  not  be  admitted,  (o)  But  it  will  not  be  conclusive  as  to  the 
truth  of  allegations,  which  vvere  not  material  or  traversable.  (3) 
Thus,  for  example,  a  party  will  not  be  estopped  from  averring,  in 
an  action  of  debt  on  a  bond,  that  the  bond  was  made  at  A.,  though, 
in  a  former  action  upon  the  same  bond,  he  averred  it  to  have  been 
made  at  B.  (4)  So,  in  the  case  of  a  conviction  for  felony,  where 
the  jury  have  given  a  general  verdict,  the  record  will  not  be  con- 
clusive, that  the  offence  was  conmiitted  on  the  day  mentioned  in 
the  indictment,  for  the  time  is  not  of  the  substance  of  the  charge; 
and,  therefore,  a  party  interested  to  dispute  the  forfeiture,  (which, 
in  the  case  of  real  property,  relates  to  the  time  of  the  offence,)  may 
falsify  the  record,  and  show  that  the  offence  was  committed  on 
another  day.  (5)  But  if  the  jury  find  specially  the  precise  day, 
all  parties  are  concluded.  (6) 

The  first  sort  of  records,  to  be  considered,  are  acts  of  parliament;  Acts  of  parlia 
and  these,  says  Ch.  B.  Gilbert,  are  the  highest  and  most  absolute 
proof.     Acts  of  parliament   relate  either  to  the  kingdom  at  large, 
when  they  are  called  general  acts;  or  only  to  particular  classes  of 
men,  or  to   certain  individuals,  in  which  case  they   are  called  pri- 
vate acts.     Laws  which  concern  the  King,  or  all  lords  of  manors,  Poblie. 
or  all  officers  in  general,  or  all  spiritual  persons,  or  all  traders,  are 
public  laws.     But  such  as  relate  to  the  nobility  only,  or  to  spiritu- 
al lords,  or  to  particular  trades,  are  private  acts.  (7)  (p)     This  dis-  P"vot«. 
tinction  between   public  and   private  acts   is  not  applied,  in  collec- 
tions of  the   English  Statutes   at  large,  to  any    statutes  previous  to 

(1)  R.  V.   Shaw  and   others,  1   Russ.         (4)  Com.  Dig.  tit.  Estoppel,  E.  6. 

&  Ry.  Cr.  C   526.  (5)  Ive's  case,   3  Inst.   230.      Gilb-. 

(2)  Leighton     v.     Leighton,    1     Str      Ev.  230. 

210.  (6)  Gilb.  Ev.  230. 

(3)  Co.  Li:t.  352,  b.  (7)  Gilb.  Ev.  39.  40. 


(n)  See  Note  650,  p.  799.     (o)  S«e  Note  561,  p.  799.     {p)  See  Note  &b2,  p.  801- 


318 


Of  Acts  of  Parliament. 


[Ch.  1. 


those  of  Richard  the  Third.  From  that  period  the  distinction 
commences  in  tlie  several  tables  prefixed  to  the  respective  col- 
lections. (1) 

Whenjadicial-  i       i     •        i 

ly  noticed.  Tlic  general  rule  is,  that  public  acts  of  parliament  are  to  be  tak- 

en notice  of  judicially  by  courts  of  law,  without  being  foi'inally  set 
forth;  but  particular  or  pi'ivate  acts  are  not  regarded  by  the  Judg- 
es, unless  formally  shown  and  pleaded.  (2)  {q)  In  some  cases,  how- 
ever, the  necessity  of  pleading  a  private  act  has  been  dispensed 
with;  as,  where  there  is  a  special  clause,  enabling  the  defendant, 
in  answer  to  any  action  for  matters  done  under  the  act,  to  plead 
the  general  issue;  or,  where  the  private  act  has  been  recognized 
by  some  public  net  of  the  legislature.  Thus,  the  statute  23  H.  6, 
c.  9,  relative  to  sheriff's  bonds,  (even  supposing  it  in  its  original 
constitution  to  be  a  private  act,  as  relating  only  to  officers  of  a  cer- 
tain description,  which,  however,  according  to  the  best  authorities, 
it  is  not,)  must  now  he  taken  notice  of  judicially,  because  the  stat- 
ute 4  &  5  Ann.  c.  16,  s.  20,  enables  the  sheriff  to  assign  the  bond, 
and  thus  makes  it  a  general  law.  (3) 

Preamble.  The  preamble  of  an  act  of  parliament,  reciting,  that  certain  out- 

rages had  been  committed  in  particular  parts  of  the  kingdom,  has 
been  adjudged  by  the  Court  of  King's  Bench,  in  a  late  case,  to  be 
admissj.ble  in  evidence,  for  the  purpose  of  proving  an  introductory 
averment  in  an  information  for  a  libel,  that  outrages  of  that  de- 
scription had  existed.  (4)  (r)  Public  acts  of  parliament,  it  was  said, 
are  binding  upon  every  subject;  the  Judges  are  bound  to  take  ju- 
dicial notice  of  their  contents;  every  subject  is,  in  judgment  of 
law,  privy  to  the  making  of  them,  and  supposed  to  know  them; 
the  passing  of  an  act  of  parliament  is  a  public  proceeding  in  all  its 
stages,  and  when  the  act  is  passed,  it  is,  in  the  contemplation  of 
law,  the  act  of  the  whole  body  of  the  kingdom.  The  Court  of 
King's  Bench,  for  these  reasons,  were  of  opinion,  that  the  pream- 
ble in  question  had  been  properly  admitted  in  evidence. 

(1)  See   preface   to   new    edition  of    224.     Samuel  v.  Evans,  2-T.  R.  575. 
Statutes  at  Large.  (4)  R.    v.  Sutton,  4   Maule  &  Selw. 

(2)  Bull.  N.  P.  222.  5.'}2. 

(3)  Saxby    V.    Kirkus,    Bull.    i\.  P. 


(g)  See  Note  553,  p.  802.     (r)  See  Note  564,  p.  802. 


Ch.   I.]  Of  Ads  of  Parliament.  319 

In  many  cases  a  defendant  will  be  precluded,  by  the  nature  of  Act,  when  to 
the  pleadings,  from  talcing  advantage  of  a  public  act  of  parliament. 
Thus,  in  an  action  of  debt  upon  a  bond,  the  defendant  cannot,  un- 
der the  plea  of  non  est  factum,  avail  himself  of  the  statute  13  Eliz. 
c.  8,  s.  4,  (1)  wliicii  makes  usurious  contracts  utterly  void.(s)  But 
if  he  pleads,  that  the  bond  was  void  on  account  of  usury,  he  may 
insist  upon  the  statute,  though  he  has  not  formerly  recited  it.  (2) 
In  an  action  of  assumpsit,  indeed,  where  the  defendant  may  give 
in  evidence  any  thing  that  discharges  the  debt,  or  proves  nothing 
due,  he  may  show  under  the  general  issue,  that  the  contract  was 
usurious,  (3)  or  founded  on  an  illegal  consideration,  which  makes 
the  contract  void.  (4)  {t) 

If  an  action  or  information  be  brought  upon  a  penal  statute,  penal  act. 
and  there  is  another  statute  which  exenipts  or  discharges  the  de- 
fendant from  the  penally,  this  latter  act,  as  some  books  lay  down 
the  rule,  cannot  be  given  in  evidence  under  the  general  issue, 
but  ought  to  be  pleaded;  for  the  general  issue  is  but  a  denial  of 
the  plaintiff's  declaration,  and  the  plaintiff,  it  is  said,  has  proved 
him  guilty,  when  he  has  proved  him  within  tlie  law,  upon  which 
he  founds  his  declaration.  (5)  It  is,  indeed,  enacted,  by  statute 
21  Jac.  1,  c.  4,  s.  4,  that  in  actions  on  penal  statutes,  it  shall  be 
lawful  for  the  defendant  to  plead  not  guilty,  or  that  he  owes 
nothing,  and  to  give  in  evidence  such  special  matter,  which,  if 
pleaded,  would  have  discharged  the  defendant  at  law:  but  this 
suiiuic  has  been  generally  considered  to  attach  only  on  ante- 
cedent penal  laws,  and  not  to  extend  to  those  subsequently 
enacted.  (6)  However,  with  respect  to  these  also,  it  should 
seem,  according  to  the  modern  practice,  the  defendant  may 
plead  nil  debet,  and  give  in  evidence  the  statute;  which  would 
show  tliat  he  does  not  owe  the  penalty.  Thus,  on  a  prosecution 
for  exeicising  a  trade  contrary  to  the  provisions  of  a  statute,  the 
defendant  may  show,  under  the  general  issue,  that  he  is  exempted 
from  penalties   by  a  subsequent  statute.  (7)      And   on  the  trial   of 

(1)  See  also  12  Ann.  st.  2,  c.  16.  (6)  Gaul's  case,  1  SalU.  372,  Hicks's 

(2)  Com.    Dig.    tit.    Pleader,    2    VV.  case,  ib.     4    Burr.  2467.     Bull.    N.    P. 
23.  196.     French,    q.   t.    v.    Coxon,    2   Str. 

(3)  Ld.  Bernard    v.  Saul,  1  Sir.  498.  1081.     S.    C.     more   fully    stated    in   2 
Bull.  N.  P.  152,  S.  C.  Selw.  N.  P.  562,  n.  ( 1 17.) 

(4)  Adm.    per  Cur.  in   Hussey  v.  Ja-         (7)   R.  v.    Pemberton,  1  Black.  Rep. 
cob,  1  Ld.  Raym.  89.  230. 

(5)  2  Roll.  Ad.  683,  pi.  13.     Bull.  N, 
P.  225. 

(s)  See  Note  555,  p.  803.      (i)  See  Note  556,  p.  803. 


320  Of  Verdicts  and  Judgments,  [Ch.  2. 

an  Indictment  against  a  parish  for  not  repairing  a  highway,  the 
defendants  may,  on  the  general  issue,  give  in  evidence  an  act  of 
parHament,  which  exempts  them  from  the  repair,  and  transfers  it 
to  commissioners.  (1)  If  the  same  act,  which  imposes  the  penalty, 
contains  also  the  proviso  of  exemption,  it  is  quite  clear,  that  this 
proviso  may  be  shown  under  the  general  issue.  (2) 

(1)  R.  V.    Inhabitants  of  St.  George,      Sibley  v.  Cunning,  4  Burr.  2469.     Bull, 
t  Ciinipb   222.  N.  P.  225. 

(2)  Sutton  V    Bishop,  4  Bnrr.  2284. 


GHAP.  II. 

Of  Verdicts  and  Judgments  of  Courts  of  Record. 

In  treating  of  judicial  proceedings,  and  enquiring  in  what  cases 
they  are  admissible  in  evidence,  it  is  proposed  to  consider,  first,  the 
verdicts  and  judgments  of  courts  of  record;  secondly,  the  judg- 
ments of  courts  of  exclusive  jurisdiction;  and,  thirdly,  certain  other 
proceedings  of  an  inferior  kind. 

The  admissibility  of  verdicts  and  judgments  of  courts  of  record 
is  the  subject  of  the  present  chapter,  in  which  will  be  considered, 
first,  their  admissibility,  with  reference  to  the  parties  in  the  suit; 
secondly,  their  admissibility,  with  reference  to  the  subject-matter 
of  the  suit;  thirdly,  the  admissibility,  in  civil  cases,  of  verdicts, 
which  have  been  given  in  criminal  prosecutions. 

Sect.   I. 

Of  Verdicts  and  Judgments j  with  reference  to  the  Parties  in  the  Suit. 

The  general  principles,  which  govern  this  subject,  are  clearly 
laid  down  in  the  celebrated  judgment  delivered  by  the  Chief  Jus- 
tice De  Grey,  on  a  question  referred  to  the  Judges  in  the  prosecu- 
tion of  the  Duchess  of  Kingston.  (1) 

(1)  11  St,  Tr.  261.     20  Howell'iSt.  Tr.  53S,  S.  C, 


Sect.  1.]  with  refci encc  to  the  Parties.  321 

"  Ii  is  true,  as  a  gensral  principle,"  said  the  Chief  Justice  De  General  rnlo. 
Grey,  in  delivering;  the  opinion  of  the  Judges,  "  that  a  tnuisaction 
between  two  parties,  in  judicial  proceedings,  ought  not  to  be  bind- 
ing upon  a  third;  for  it  would  be  unjust  to  bind  any  person,  who. 
could  not  be  admitted  to  make  a  defence,  or  to  examine  witnesses, 
or  to  appeal  fioni  a  judgment  which  he  might  think  erroneous. 
Hence  liie  deposiiions  of  witnesses  in  another  cause  in  proof  of  a- 
fact,  the  verdict  cf  a  jury  finding  a  Aict,  and  the  judgment  of  the, 
comt  on  facts  found,  alihough  evidence  against  the  parties  and  all 
claiming  under  them,  are  not  in  general  to  be  used  to  the  prcjudrce 
of  strangers. "(l)(zt)  To  this  general  rule  there  are  some  excep- 
tions, founded  upon  particular  reasons,  wliich  vviil  be  stated  in  the 
course  of  the  present  chapter.  . 

"  From  the  variety  of  cases,"  continued  Ch.  J.  De  Grey.,  "  rela- 
tive to  judgments  being  given  in  evidence  in  civil  suits,  these  two 
deductions  seem  to  follow,  as  generally  true:  first,  that^the  judg- 
ment of  a  court  of  concitrrejif  jurisdiction,  directly  upon  the  poigt, 
is,  as  a  plea,  a  bar,  or,  as  evidence,  conclusive  between  the  sair.e  ])ar- 
ties,  upon  the  same  matter  directly  in  question  in  anbthVr'cCnn-t; 
secondly,  that  the  judgment  of  a  court  of  exc/wsiVe  jurisdiction,  di-  -•  ■ 

rectly  upon  the  point,  is  in  like  manner  conclusive  upon  the  same 
matter  coming  incidentally  in  question  in  another /court,  betwe&n 
the  same  parties,  for  a  difierent  purpose.  But  nehther  the  judg- 
ment of  a  concurrent  or  exclusive  jurisdiction  is  evidence  of  any 
matter,  wiiich  came  collaterally  in  question,  though  within  their 
jurisdiction,  nor  of  any  mat.er  incidenialiy  cognizable,  nor  of  any 
matter  to  be  inferred  by  ai'gimient  from  the  judgment."  (2) 

First,  then,  a    iudsiment   direcily  upon   the    point,  is,  as  a  plea,  Effect  of  judg- 

•>      ^  «  nieiit  vvlien 

a  bar  between   the   same  parties,      ^i    party   maj  be  estopped   by  pleaded, 
verdict  on   record: 'as,   in     an    action   of  trespass,    if  the   defend- 
ant prescribes   for   common,    and    the  plaintiff  "traverses   the   pre- 
scription,  the   defendant  may   say,    tiiat  in  a  foi-raer   action  by  the 

(J)  .lud^merit  of  De    Grey,   C.J.    in  (2)   20    Howell':^  St.    Tr.  538.     2  B. 

Diilchess   of  Kingslon's    case,   11   Stale      ^  C.  8S7.     Vide  infra,  p.  329. 
Tr  261.     20  iJowell's  St.  Tr.  538. 


(ti)  Bee  Note  557,  p.  803. 

Vol.  I.  41 


S22 


Of  Verdicts  and  Judgments, 


[Ch.  2. 


plaintiff  against   the  defendant,    the  same  prescription  was    found 
against  the  plaintifF.  (1) 


Effect,  when 
not  pleaded. 


A  recovery  in  any  suit,  upon  issue  joined  on  matter  of  liile,  is 
conclusive  upon  the  subject-matter  of  such  title,  if  pleaded  by  way 
of  estoppel;  but,  unless  so  pleaded,  it  will  not  be  conclusive.  (2) 
In  Trevivan  v.  Lawrence,  (3)  it  was  held,  that  if  a  party  will  not 
rely  on  the  estoppel,  when  he  may,  but  takes  issue  on  the  fact,  the 
jury  shall  not  be  bound  by  the  estoppel,  for  they  are  to  find  the 
truth  of  the  fact. 


Verdict  for 
same  cause  of 
actioa. 


Estoppel, 
when. 


In  the  late  case  of  Vooght  v.  Winch,  (4)  an  action  on  the  case 
for  widening  a  water-channel  to  the  damage  of  the  plaintiff's  mill, 
the  Court  of  King's  Bench  held,  that  a  verdict  obtained  by  the  de- 
fendant in  a  former  action,  which  had  been  brought  by  the  plaintiff 
for  the  same  cause,  was  admissible  in  evidence  under  the  general 
issue,  though  not  conclusive;  the  jiidgnienl,  would  have  been  con- 
clusive, if  pleaded  in  bar  by  way  of  estoppel.  When  a  judgment 
is  pleaded  as  an  estoppel,  the  plaintiff  will  not  be  allowed  to  discuss 
the  case  with  the  defendant,  and  for  the  second  time  to  disturb  and 
vex  him  by  the  agitation  of  the  same  question:  but  if  the  defend- 
ant plead  not  guilty  in  the  second  action,  he  has  thereby  elected 
to  submit  his  case  to  the  jury,  who  are  to  give  their  verdict  upon 
the  whole  evidence  submitted  to  them.  (5)  {v)  The  jury,  'upon 
the  general  issue,  are  to  consider,  not  whether  the  plaintiff  is  es- 
topped from  trying  the  question,  but  whether  the  defendant  be  guil- 
ty of  the  wrongful  act  imputed  to  him.  (6) 


Effect  of  yer-         When   a   judsiment    is    lileaded,    it   is   proposed   as    somethiiie; 
diet  as  evi-  ..  j      o  i  5  11  b 

-dence.  decisive  and   conclusive,   as   res    judicata.       When    a  verdict   is 


(1)  Com.  Dig.  tit.  Estoppel,  (A.  1.) 
citing  1  Show.  28.  I'he  case  is,  In- 
cledon  and  another  v.  Burgess.  The 
doubt  tliere  was,  whether  tliis  was  a 
good  estoj)pel  as  against  a  co-|)hiintiiy, 
a  stranger  to  tiie  former  action;  and 
the  Court  gave  judgment  on  another 
point.  On  this  subject  see  the  judg- 
ment of  Lord  Elleiiborough  in  tiie 
case  of  Outram  v.  Worewood,  3  East, 
354,  355. 

(2)  3  East,  354,  365. 

(3)  Sall<.  276,  cited  by  lloiroyd  J. 
Barn.  &  Aid.  672. 


(4)  2  Barn.  &  Aid.  662.  The  cause 
of  uclioii  was  the  same  in  botli  cases  : 
otherwise  the  verdict  in  the  former 
ciisc  would  not  have  been  admissible . 
In  assumpsit,  the  defendant  may  give 
in  evidence,  under  the  general  issue, 
a  recovery  by  the  plaintiff  in  a  former 
action  for  the  same  cause.  Stafford 
v.  Clark,  2  Bing.  377. 

(5)  Cv  Ch.  Justice  Abbot,  2  Barn. 
J:  Aid.  (iViS. 

(6)  By  Bayley,  J.  ib.  669. 


(i>)  See  Note  558,  p.  804. 


Sect.   1.]  ivilk  reference,  to  Parties.  323 

offered  in  evidence,  it  is  proposed  on  ilie  same  footing  as  the 
rest  of  the  evidence  in  the  cause,  only  as  a  medium  of  proof; 
and  the  credit  due  to  it  must  depend  upon  the  nature  and  cir- 
cumstances of  the  particular  case.  It  is  merely  the  opinion  of 
a  former  jury,  upon  tlie  facts  then  laid  before  them,  and  with  ref- 
erence to  the  strength  or  weakness  of  the  proofs  on  each  side. 
But  how  their  opinion  was  formed,  upon  what  grounds  it  proceed- 
ed, or  what  means  they  had  of  judging,  it  is  impossible  to  ascer- 
tain. No  succeeding  jury  can  be  placed  precisely  in  the  situation 
of  a  former  jury.  In  general,  it  may  be  remarked,  we  are  apt  to 
take  this  kind  of  proof  too  much  in  the  gross,  and  give  it  too  much 
weight  in  the  scale  of  evidence,  (w) 

A  judgment  is  not  to  be  used  as  an  estoppel  against  a  party,  who  Thesame par- 
does  not  stand  in  the  same  relation  or  character,  as   in   the  former   ^"'  ^^°' 
suit,  (a;)     A  woman  is  not  estopped,  after  coverture,  by  an  admission 
upon  record  by  her  liusband  aiid  lierself  during  coverture.  (1)      An  Heir, 
heir,  claiming  as  heir  of  his  father,  shall  not  he  estopped  by  an  es- 
toppel upon  him  as  heir  to  his  mother. (2)      A  party  suing  as  exec-  Executor, 
iitor,  in  an  action  of  debt  upon  a  bond,  will  not  be  estopped  by  hav- 
ing  been  barred    in  an  action  upon   the  same  bond,  when   he  sued 
as  administrator;  but   he  may  show  that  the  letters  of  administra- 
tion  have  been  since   repealed. (3)     For  the  same  reason,  an  ac-  Accessary, 
quittal  of  a  person  as  accessary  cannot   be  pleaded   by  him  in  bar, 
on  a  charge  against  him   as  principal;    for   the  quality  and   nature 
of  the  offence  are  quite  different. (4) 

A  verdict  against   two  defendants  will   be  evidence  in  an  action  Evidence 

upon    the   same   subiect-malier,    a2;ainst    one    of    the    defendants  ^g^'"®|  one  oi 
'  ,  ''  .  .  several  parties, 

alone,     if   he    alone   was    substanti:dly    interested    in    the    former  when. 

action,  and    the  other  defendant   was  joined  with   him   merely   for 

form.      Thus,  where  a  person  brought  an  action  of  trover  against 

a  creditor  and   the   sheriff,   for   goods   levied   under   an  execution, 

in  which  action  the  plaintiff*  failed,  and  afterwards   he  brought   an 

action  of  assumpsit  against  the  creditor  alone,  to  recover   the  pro- 


(1)  Com.  Dig.  tit.  Estoppel,  (C.)  (4)   2  Hale,    P.  C.  244.     Fost.  Disc. 

(2)  Ibid.  S><51. 

(3)  Robinson's  case,  5  Rep.  32,  b. 


(jc)  See  Note  559,    p.  811.     (or)  See  Note  560,  p.  811. 


324  0/  I'erdicts  anl  JuJjrments,  [Cn.  ^. 

ceeds  of  lhc3  sali  cftlio  goods,  ths  judgment  i.i  thi  firsl  ac;tion  was 
\vAd  to  be  a  bar  to  thj  socoiul  vi:Uv.i.{l)(y) 

Who  the  real       In  considering   the  effect  of  verdicts   and  judgments,   courts  of 

jiar  tes.  justice  will  alvvnys  take  notice  of  the  real  parties  to  the  suit.(z)      In 

Ejectment.        an  action  of  ejectment,  the  lessor  of  the  plaintiff  and  the  tenant  in 

possession   are  judicially  considered  the  real  parties. (2j  (a)     For 

tlie  same  reason,  in  the  case  of  Kinnersley  v.  Orpe,(3)  which  was 

an  action  for  a  penalty,  incurred  by  destroying  fish  in  the  [ilaiutiff's 

Plea  of  iustifi- fishery,  a  verdict  for  the  plaisitiff  in  a  former  action,  for  a  trespass 

cation,  111  nght  committed  in  the  same  fisherv,  against  one  who  justified  as  servant, 
of  anollier.  .  ,  „ 

was  allowed  to  be  evidence  against  the. defendant.      At  the  trial  of 

the  cau.sc,  this  was  admitted,  as  conclusive  evidence  of  the  plain- 
tiff's right  of  fishery;  as  it  appeared,  that  the  defendant  in  the  sec- 
ond suit  acted  by  the  command  of  the  same  person,  under  whom 
the  defendant  in  the  first  action  had  justified,  and  who  was  con- 
sidered by  the  judge  to  be  the  true  party  in  both  causes.  The 
Court  of  King's  Bench,  afterwards,  on  a  motion  for  a  new  trial, 
considered  the  evidence  admissible,  though  not  conclusive. (6) 

Verdict  or  Estoppels  by  verdict,  adnaissions  on  record,  &c.  bind  priviey  in 

judgment  be-    |j1qo(J    (as  the  heir,)  privies  in  estate,  (as  feoffee,  lessee,  &c.)  and 

tween  pricies.  '    ^  "^    '  ^  .     ' 

privies  in  law  (as  lord  by  escheat,  tenant  by  curtesy,  tenant  in  dow- 
er, the  incumbent  of  a  benefice,  and  others  who  come  in  by  act  of 
law  in  the  post;)  in  the  same  manner,  persons  standing  in  either  of 
these  relations  will  be  bound,  equally  v/iih  the  parties  themselves, 
by  a  judgment  in  a  former  action  for  the  same  matt'M-,  if  pleaded  in 
bar.(4) 

Privisa.  A    vcrdict   or  judgment   in   a   former   action,    upon    the    same 

matter  directly  in  question,  is  evidence  for  or  against  privies  in 
blood,    privies    in   estate,    and    privies   in   law,    as  v.'ell    as    for  or 

1.  In  blood,  against  the  parlies  to  the  suit. (c).  If  an  ancestor  has  obtained  a 
verdict,  the  heir  may  give  it  in  evidence,  as  privy  to  it.(5)((/)      If 

(i)  Hitchin   v.    Campbell,    2    Black.         (4)  Co.   lit.   352,  a.     Com.    Dig.  tit. 
Rep.  827.  Esloppol  (B  )       Outram    v.    Moiewood, 

(2)  Aslia  V.  Parkin,  2  Burr.  6dS.  3     East,     346.      Lady     Dartmouth    v. 

(3)  2    Doug.    517.     r;ee    the    obser-     Robert.^,  16  East,  334. 

vntion    on     this     case,     in    Outram     v.  (5)   Per    Cur.    in    Lock  v.    Norborne, 

!\lore\vood,     3    East.     SCG.       And     sco     3    Mod.  Rep.  142. 
Hancock  v.  Welch,  infra,  p.  332. 


(y)  See  Note  551,  p.  Sll.     {z)  See  Note  5G2,  p.  812.     (a)  See  Note  563,  p.  812. 
(6)   Fee  Note  564,  p.  312.      (c)  See  Note  565,  p.  813.      (d)  See  Note  566,  p.  813. 


Sect.  1.]  with  reference  to  the  Parties.  S25 

several  estates  in  remainder  bo  limited  in  a  deed,  and  one  of  the  2.  lo  estate, 
parlies  in  remainder  obtain  a  verdict,  in  an  action  brought  against 
him  for  part  of  the  land,  that  verdict  may  be  given  in  evidence  by 
another  person  in  remainder,  in  an  action  brought  against  him  for 
the  same  land,  although  he  does  not  claim  any  estate  under  the 
first  remainder-man;  because  they  all  claim  under  the  same 
deed.  (1)  So,  a  verdict  for  or  against  a  lessee  is  evidence  for  or 
against  a  reversioner.  (2)  (e) 

A'verdict  on  a  question  of  tithes,  between  a  vicar  and  an  occu-  3  Pnvy  inlaw. 

pier  of  land   in  the   parish,  is  evidence  between  him  and   another 

occupier,  the  vicar  in  both  suits  claiming;  the  same  general  ri2;ht  to  -rr. 

•        '  s  o  o  V  icar,  or  rec- 

tilhes.  (3)  And  a  decree,  in  the  Court  of  Exchequer,  in  a  cause  tor. 
between  the  vicar  on  one  side,  and  the  impropriator  on  the  other, 
(establishing  the  vicar's  title  to  small  tithes,  under  an  ancient  en- 
dowment, against  the  defendant,  who  insisted  that  he  was  only  en- 
titled to  an  annual  payment  in  lieu  of  tithes,)  is  evidence  in  suits 
between  succeeding  vicars  and  patrons;  but  not  conclusive  evi- 
dence, as  it  would  be,  if  the  ordinary  had  been  a  party  to  the  first 
suit.  (4)  So,  a  judgment  for  or  against  the  schoolmaster  of  a  hospi-  Q^i^e^^^^  "* 
tal,  concerning  tlie  rights  of  his  office,  has  been  admitted  to  be  ev- 
idence for  or  against  his  successor.  (5)  And  so,  where,  on  an  infor- 
mation in  the  nature  o(  quo  warranto  against  the  defendant,  for  act- 
ing as  baiiifi'  of  a  corporation,  the  defendant  pleaded,  that  be  had 
been  duly  elected  under  a  nomination  by  two  persons,  who  were 
baililis  of  the  corporation,  and  the  point  in  issue  was,  wheth.er  they 
were  bailiff's  at  the  time  of  the  election,  the  record  of  a  judgment  of 
ouster  in  a  quo  loarranto  against  them,  was  adjudged  to  be  good  evi- 
dence against  the  defendant,  who  claimed  under  them.  (6)*     These 

(1)  PyUe  V.    Crou.;h,    1  Ld.    Raym.  1237.     And     see    Ashby   v.    Power,  2 

7S0.  Com.  Dig.   tit.   Evidence,  (A.    5.)  Gwill.   1239.     Benson  v.  Olive,  2  Gwiil. 

Bull.  N.  P.  232.  701. 

(2)     Per    Cur.     in     Riishvorth     v.  (4)   Carr    v.    Meaton,  3  Gvvil!.    12G1. 

Countess     of  PetiibroUe     and     Currier,  (5)     Lord     Brounker    v.    Sir    R.  At- 

Hardr.    172.     Com.    Dig.   lit.    Evidence  kins.  Skin.  1.5- 

(A.    5)    Dull.    N.    P.    232.     Gilt).  Ev.  (6)     R.    v.    Hebden,     Andr.    3S8;  2 

35,36.     Bp.    of  Lincoln  V.    Sir  VV.  El-  Str.    1169,  S.    C.     Bull.    N.  P.    231,  S. 

lis,  2  Gvvill.  632.  C.;2Selvv.    N.    P.  10-17,     cited     from 

(3)    Travis   v.    Chalouer,    3     Gvvill.  MS.  R.  v.  Grimes,  5    Burr   2601,   S-  P. 


*...  Judgment   of  ouster   has     been    considered    in    the    nature   of  a   judgment 
t»  rem,     la   the  case   of  the   King  v.   the   Mayor   of  York,  5  T.    R.   72   where 


(e)  Sea  Note   557,  p.  813. 


336 


Of  Verdicts  and  Judgments, 


[Ch.  2. 


cases  fully  establish  ilje  rule  above  laid  down,  that  a  verdict  or 
judgment  directly  upon  the  point  is  good  evidence,  not  only  for  or 
against  the  parties  to  the  suit,  l)ut  also  for  or  against  any  persons 
standing  in  the  relation  before  mentioned,  of  privies  in  blood,  priv- 
ies in  estate,  or  privies  in  law.  (/) 


Verdict,  not 
evidence 
against  a 
stranger. 


Evidence,  as 
to  damages 
recovered. 


The  general  rule  is,  that  a  verdict  cannot  be  evidence  for  either 
party,  in  an  action  against  one  who  was  a  stranger  to  the  former 
proceeding,  who  had  no  opportunity  to  examine  witnesses,  or  to 
defend  himself,  or  to  appeal  against  the  judgment,  (g)  Thus  a 
verdict  in  an  action  between  A.  and  B.  is  not  evidence  against  a 
third  person,  C,  who  was  neither  party  nor  privy  to  the  first  suit. 
The  case  of  Green  v.  The  New  River  Company,  (I)  where  Lord 
Kenyon  said,  that  a  verdict  obtained  in  an  action  against  a  person 
for  the  negligence  of  his  servant,  is  evidence  in  a  subsequent  ac- 
tion by  the  master  against  the  servant,  as  to  the  quantum  of  dam- 
ages, is  not  an  eKceplion  to  the  general  rule.  Such  a  verdict  would 
not  be  evidence  of  the  fact  of  the  injury,  but  admissible  only  as  ev- 
idence of  special  damages,  to  show  the  amount  of  what  the  mas- 
ter was  by  process  of  law  compelled  to  pay  in  the  action  brought 
against  himself.  (/«) 


Nor,  for  a 
Blranger. 


It  is  laid  down,  also,  as  a  general  rule,  that  a  verdict  is  not 
evidence  for  a  stranger,  against  one  who  was  a  party  to  the  for- 
mer suit.  Thus,  it  was  resolved  by  Ch.  J.  Holt  and  the  other 
Judges  of  the  Court,  on  a  trial  at  bar,  that  no  record  of  con- 
viction, or  verdict,  can  be  given  in  evidence,  but  such  whereof 
the  benefit  may  be  mutual,  that  is,  such  as  might  have  been 
given  in  evidence  either  by  the  plaintiff  or  tlie  defendant.  (2) 
And  Ch.  B.  Gilbert  lays  it  down,  "  that  no  body  can  take 
benefit  by  a  verdict,  who  had   not  been  prejudiced    by   it  had    it 


(1)  4   T.  R.    590.     And  see  2   East,  (2)     R.    v.     Warden   of  liie     Fleet, 

459.     As   to  the  general  principle,    see      Rep.  temp.    Holt,    134.      Bull.     N.    P. 
2  Price,  434.  233,    S.  P. 


the  case  of  R.  v.  Hebden  and  R.  v.  Grimes  were  cited  in  argument,  in  order 
to  show,  that  such  a  judgment  cannot  be  conclusive  against  third  persons, 
Lord  Kenyon  is  reported  to  have  said,  "If  you  derive  title  to  a  corporate 
office  through  A.,  and  the  prosecutor  show  a  judgment  of  ouster,  against  A., 
it  is  conclusive  against  you,  unless  you  can  impeach  the  judgment  as  obt  lined 
by  fraud. 


(/)  See  Note  568,  p.  814.     (g)  See  Note  569,  p.  815.     (/i)  See  Note  570,  p.  816 


Sect.  1.]         with  reference  to  the  Parlies.  327 

gone  contrary."  (1)  {%)  The  same  rule  applies  to  depositions  as  d*P°s'''°"*- 
well  as  to  verdicts.  Thus,  if  A.  prefers  his  bill  against  B.,  and  B. 
exhibits  his  bill  against  A.  and  C.  in  relation  to  the  same  matter, 
and  a  trial  at  law  is  directed,  C.  cannot  give  in  evidence  the  depo- 
sitions in  the  cause  between  A.  and  B.,  but  the  trial  must  be  en- 
tirely as  of  a  new  cause.  (2)  { j) 

The  reason  why  a  verdict  is  not  evidence  against  a  person,  who  l^eason  of  tho 
was  neither  a  party  to  the  former  suit,  nor  claims  under  one  of  the 
parlies,  is,  because  he  had  no  opportunity  of  calling.vvitnesses,  or  of 
cross-examining  those  on  the  other  side,  nor  of  appealing  against 
the  judgment,  (k)  And  the  reason  why  the  verdict  would  not  be  ev- 
idence for  a  stranger,  even  against  a  party  who  was  engaged  in  the 
former  suit,  seems  to  be,  because,  if  he  had  been  party  to  that  suit, 
instead  of  the  person  who  gained  the  verdict,  the  result  might 
have  been  different;  for,  as  the  parties  would  in  that  case  have 
been  constituted  differently,  the  evidence  might  have  varied;  part 
of  the  evidence  might  then  have  appeared  inadmissible,  or  of  a 
doubtful  character,  or,  perhaps,  other  evidence  might  have  been 
produced  by  the  party  who  lost  the  verdict.  Under  such  circum- 
stances, to  adn)it  a  verdict  as  evidence  would  be  giving  a  party  in- 
directly the  benefit  of  tcstimon}^,  wliich  he  might  be  precluded  from 
using  directly  in  his  own  suit.  (J)  But  tliis  reason,  it  is  evident,  on- 
ly applies  where  the  verdict  is  offered  in  evidence  by  a  third  person, 
against  the  parly  who  failed  in  the  former  action,  and  not  where  it 
i<  jjroduced  against  the  parly  who  succeeded.  (?n) 

■^rhere   are   several   exceptions  to   the  general  rule,  above  laid  Exceptions  to 
down,  which  requires  that  verdicts  or  judgments  should    be  admit-  *  *^^^^- 
ted  in  evidence  only  between  the  original  parties  to  the  suit,  or  their 
privies. 

1.   On   a    question   of  custom,   or  toll,  a   verdict   is   evidence,!.  Verdict  as 
although    between    other   parties;  (3)    for   the   custom   or   toll    's  Joi|g"^&^^' 

(I)   Gilb.    Ev. -28.      Bull.    N.    P.  232.  <2)   Rushworth    v.  Countess   of  Pern- 
Ward    V.Wilkinson.  4    Barn.    &    Aid.  broke  and  Currier,  Hardr.  472. 
412.       The    same    principle    is    adopted  (3)   City  of  London  v.  Clarke,   Carth. 
by    Eyre  C.    J.  in    his    judgment    in   the  181.     Bull.  N.  P.  233. 
Dutchess    of    Kingston's    case,    11    St. 
Tr.  261. 


(f)  See  Note  671,  p.  818.     {j)  See  Note  572,  p.  818.      (fe)  See  Note  573,  p.  819. 
(0  See  Note  574,  p.  819.     {m)  See  Note  575,  p.  S19. 


328  Of  Verdicts  and  Judgments,  [Ch.  2. 

lex  Zoci,  and  it  is  as  reasonable  to  give  in  evidence  a  verdict  between 
otber  parties,  as  to  prove  a  payment  of  the  duty  by  strangers.  So, 
on  a  question  of  customary  right  of  cointnon,  (1)  or  a  public  riglit 
of  way,  (2)  (n)  or  on  the  liability  to  repair  a  l)ighuay,(3)  (o)  or  on 
manorial  or  other  customs,  (4)  or  on  the  public  right  of  election  to 
n  parochial  office,  (5)  a  verdict  in  afornuer  action  between  any  oth- 
er persons  is  admissible  in  evidence.  The  common  reputation  of 
the  place  would  be  evidence  of  the  right;  a  fortiori  the  finding  of 
twelve  men  upon  their  oath's  is  evidence.  (6)  (p)  On  such  ques- 
tions, therefore,  a  verdict  in  an  action  between  A.  and  B.  is  evi- 
dence of  the  point,  there  directly  determined,  in  an  action  between 
C.  and  D.,  where  the  same  point  comes  in  issue;  but  it  is  clearly 
not  conclusive  evidence  for  or  against  A.  or  B.,  in  an  action  be- 
tween either  of  them  and  a  third  person,  C;  (8)  it  could  not  be 
pleaded  in  such  a  case,  by  way  of  estoppel. 

On  question  of  Another  exception  to  the  general  rule,  says  Mr.  Justice  Buller, 
^     "     '          is  in  a  question  of  pedigree,  where  a  special  verdict  between  other 

parties,  finding  a  pedigree,  would  be  evidence  to  prove  a  descent; 

for  in  such  case,  what  any  of  the  family,  who  are  dead,  have  been 

heard    to  say,  or  the  general  reputation  of  the   family,  entries   in 

family  books,  ^c.  are  allowed.  (9)  (q) 

2.  Judgment  2.  A  judgment  in  rem  in  the  Exchequer  is  conclusive  as  to 
clu^sw"rju°ris!^' all  the  world.  (10)  The  sentence  of  a  Court  of  Admiralty  is 
diction.  equally  conclusive   upon  all   persons.     So  is  the  sentence  of  ec- 

clesiastical courts   in  some  few  particular  instances,  in  which   they 

(1)  1    East,  357.     5    T.    R     413,  n.  (9)   Bull.    N.  P.  233.  "Of  this  opin- 

(2)  Reed  v.  Jackson,  1  East,  355.  ion,"  the  writer  adds,    "  wns    iMr.    Jus- 

(3)  R.  V.  St.|,Pancras,  Peake,  N.  P.  tice  Wrioht,  in  the  Duke  of  Athol's 
C.  219.                "  case,    which    opinion    is     generp.liy    ap- 

(4)  By  Holt,  Ch.  J.,  Carth  181.  proved,  though  (he  deterininntion  of 
Case  of  thrt  Manchester  Mills,  cited  the  re.=;t  of  the  Court  was  contrary." 
in  Cort  v.  Kirkheck,  i  Doug.  222,  n.  The  other  Judges  considered  the  i>pp- 
i\5.)  cial    verdict    inadiiiissiljic,  as  res    inter 

(5)  Berry  V.  Banner,  Peake,  N.  P.  alios  acta;  and,  for  any  thing  they 
C_  J5g  know    to    the    contrary,    the    same    evi- 

(6)  By  Lawrence  J.,  1  East,  357.  donee,  that  was  laid  before  the  for- 
Gilb    Ev.  31  nier    jury,  might    have    been    then    pro- 

(7)  Biddulph  v.  Ather,  2  Wils.  23.         dueed.    'See    Neal    v.    D.    of  Athol,    2 

(8)  See  the   cases   above   cited,    and     Sir.  1151. 

see  Mayor  of  Hull  v.  Horner,  Cowp.  (10)  See  infra,  c.  3,  s  3.  And  se« 
111,  ad  fin.  R-  v.  Hebden,  supra,  p.  325. 


(n)  See  Note  576,  p.  819.     (o)  See  Note  577,  p.  819.     (jd)  See  Note  578,  p.  320. 
(5)  See  Note  579,  p.  820. 


Sect.  1.]  ivith  reference  to  tite  Parties.  329 

have  an    exclusive  jurisdiction.     This  subject  will   be   fully   con- 
sidered in  a  subsequent  section,  (r) 

o.    A  judement  of  a  court  of  quarter  sessions,  discharscins;  an  or-  3.  Judgment 
der  ot  removal,  (not  lor  delect  ot  lorm  but  upon  the  merits,  is  con-  appeals, 
elusive  as  between  the  contending    parishes,  (but  not  as   to  a  third  Orderd's- 
pnrish,)  to  establish  this,  that  the  settlement  of  the  pauper  was  no^  tlmrged. 
in  the  appellant  parish  at  the  time  of  the  removal.  (1)    So,  that  if  its  effect,  in 
the  same  pauper  were  to  be  again  removed  from  the  one  parish  to  disproving  a. 

'  .  '  settlement,  33 

ihe  Other,   the  former  judgment   would  negative   and  disprove  his  to  appellant 
settlement  in  the  appellant  parish,  so  late  as  the  period  of  the  fur-  P^*"'^'- 
mer  removal.     Or  if  a  woman   were  to  be  removed  from  the  one 
parish  to  the  other,  as  his  wife,  the  former  judgment  would  be  con- 
clusive, on  an   appeal  against  her   removal  between  the  same  par-   ^ 
ishes,  that  the   husband  was  not  settled  there  at   the   time   of  the 
prior  order.      So,  if  the  respondents  shoidd  prove  a  derivative  set-  Privily  to  per- 
tlement  for  the   pauper  from  his  father,  it  would  be   competent  to 
the  appellants  to  show,    that  the  father  was  removed   from  the  re- 
spondent parish  to  their  parish,  as  his  place  of  settlement,  and  that 
the  order  for  his  removal  was   reversed;  such   evidence   would  be 
admissible  on  account  of  the  privity  between  father  and  child  as  to 
the  child's  settlement,  and  would  be  conclusive  to  the  extent  above 
stated.      But  it  would  not  be  competent  to  show   that  the  pauper's 
brother  was  removed,  and  the  order  of  removal  reversed;  for  here 
there  is  not  such  privity,  and  though  the  settlement  proved  for  the 
pauper   should  be  one   derived  from  the  common  father,  yet  as  the 
father's  settlement   must   have  come  into   question  on   the  former 
appeal,  (if  it  came  into  question  at  all,)  only  collaterally  and  inci- 
dentally, the  judgment  in  the  former  appeal  would  not  be,  respect- 
ing the  brother^  settlement,  admissible  evidence  on  the  part  of  the 
appellant,  in  answer  to  such  derivative  settlement.  (2) 

It  will  be  competent  to  the  respondent  to  prove,  in  reply,  that 
the  judgment  in  the  former  appeal,  reversing  the  order  of  re- 
moval of  tiie    pauper,   was  given,    not   on  inquiring   into  the   set- 

(1)  R.    V.    Sarratt,  Burr.    S.    C.    73.     883.     The  respondents   here    proved   a 
Harrow  V.  Rislip.Salk.  524.  prima  fucie  case  of  settlement,  by  proof 

(2)  R.  V.  Knaptoft,  2  Barn.  &  Cress,     of  relief  to  the  pauper. 

(r)  See  Note  580,  p.  820. 

Vol.   I.  42 


350  Of  Verdicts  and  Judgments,  [Ch.  2. 

tlement,  but  on  the  preliminary  objection,  that  the  pauper  was  not 
chargeable.  (1) 

Effect  asto  re-      It  appears  to  be  clear,  from  considerine  the  laneiuaee  and  na- 
movmg  parish.  •'  '  ^  r-i 

ture  01  an  order  oi  removal,  and  the  nature  ol  judgments  m  ap- 
peals against  such  orders,  tliat  a  judgment  reversing  an  order  of 
removal  from  A.  to  B.,  ascertaining  nothing  but  his  negative  prop- 
osition, namely,  that  at  a  certain  time  the  pauper  was  not  settled 
in  B.,  the  appellant  parish,  and  upon  this  point  it  is  conclusive  in 
any  future  appeal  between  the  same  parishes.  But  this  judgment 
determines  nothing  affirmatively  with  regard  to  the  removing  par- 
ish. If,  therefore,  afterwards  B.  should  remove  the  same  pauper  to 
A.,  and  A.  should  appeal,  that  judgment  could  not  be  used  by  B. 
as  evidence  of  the  pauper's  settlement  in  A.:  that  judgment  itself 
professes  nothing  upon  that  point,  and  affords  not  the  least  reason 
even  for  supposing,  that  a  settlement  in  A.  was  ever  any  part  of  the 
subject  of  inquiry.  It  finds  the  negative^  that  there  was  no  settle- 
ment in  B.:  but  as  to  ihe  aJUrmative  proposition,  of  a  settlement 
ever  having  been  in  A.,  such  a  judgment  is  a  mere  blank,  and  sup- 
plies no  kind  of  information. 

firmed.*^""*  ^"  order  of  removal,  executed  and  not  appealed  against,  (2)  or 

confirmed  on  appeal,  (3)  is  conclusive  of  the  pauper's  settlement 
at  the  time  of  the  order,  even  as  between  third  parishes,  who 
were  not  parties  to  that  order.  It  is  conclusive  upon  the  ap- 
pellant parish  as  to  all  the  world,  on  any  subsequent  appeal: 
And  conclusive  not  only  of  the  settlement  of  the  persons  named 
in  the  order,  but  also  as  to  children  not  included  by  name.  (4) 
Here,  it  may  be  observed,  the  party,  against  whom  the  judg- 
ment was  pronounced,  had  an  opportunity  of  discharging  them- 
selves by  proving  the  liability  on  a  third  parish;  and  this  not 
having  been  done,  and  the  court  of  quarter  sessions  having  con- 
firmed the  order  of  removal,  the  last  settlement  is  adjudged  to 
be   in   the   appellant    parish;    and  this   point  being    once    deter- 

(1)  R.  V.  Wheelock,  5  Barn.  &  Cress  700.     R.  v.    Bentley,    2  Bott,  704.     R. 
511.  V.  Sarratt,  2  Bott,  702. 

(2)  R.  V.  Cennelworth,  2  T.   R.  598.  (4)  R.  v.    St.  Mary,    Lambeth,  6  T. 
R.  V.  Corsham,  11  East,  .388.  Ri  615.     R.    v.    Catteral,    6    Maule    & 

(3)  Admitted,  R.    v.  Rislip,    2  Bott,  Selw.  83. 


I 


Sect,  l-l  with  reference  to  the  Parties.  '  331 

mined,  the  judgment  must  be  fiiigl,  that   there  must   be  some  end 
to  litigation.  (1) 

4.  Criminal  proceedings,  on  which  a  person  has  been  attainted,  4.  Criminal 
are  between   the  king  and   the  parly  only,  but   ihey  are  evidence,  ''"'^'^'^  '"o**- 
as  was   before  mentioned,  to  prove  llie  attainder,  between  all  par- 
ties, and  on  all  occasions.      A  conviction  and  judgment  prove  the 
incompetency  of  a  witness;  the  reversal  of  the  judgment,  on  a  writ 
of  error,  restores  his  competency.  (2)  (s) 

A  record  of  conviction  for  felony  is  admissible  in  evidence  Convlciion  of 
against  an  accessary,  to  show  that  the  felony  has  been  commit-  P"ncipai. 
ted  by  a  person  convicted  as  principal. (3)  These  fads,  the  con- 
viction of  the  principal  has  established  with  certainty,  at  least  suf- 
ficient to  put  the  accessary  to  his  answer.  The  rule  is  founded  on 
a  legal  presumption,  that  every  thing  in  a  former  proceeding  was 
rightly  and  properly  transacted.  Another  weighty  reason,  says 
Mr.  Justice  Foster,  is,  that  the  witness  against  the  principal  may 
be  dead,  or  not  to  be  found,  when  the  accessary  is  brought  upon 
his  trial,  especially  after  a  long  interval  between  the  trials.  It  is 
admitted,  however,  that  the  record  of  conviction  is  not  conclusive 
evidence  against  the  accessary,  because  it  is  as  to  him  res  inter 
alios  acta,  {i) 

A  record  of  conviction  on  an  indictment  against  a  parish,  lor  For  non-re- 
not  repairing  a  road,  seems  to  have  been  held  lo  be  conclusive  highways. 
evidence  of  the  non-liability  of  another  parish  indicted  for  not 
repairing  the  same  road;  at  least,  it  is  strong  evidence. (4)  If 
it  can  be  shown,  that  fraud  has  been  practised  in  obtaining  the 
former  verdict,  this  would  vitiate  the  judgment.  Fraud,  as  it  has 
been  observed, (5)  is  only  put  for  an  example.  If  the  parish  con- 
sists of  several   districts,  which   have   immemorially   repaired  the 

(1)  By  Holt,  C  J.,  in  II.  v.  Rislip,  265.  The  altainder  against  ihe  pria- 
2  Salk.  524.     2  Bolt,  705.  cipu!   stands,  till  it  is  reversed,  9  Rep. 

(2)  See  ante,  p.  31,  Lord    Lo  vat's     119,  a.  b. 

case.  (4)     R.  v.   St.   Pancras,   Peak,  N    P. 

(3)  Fost.  Disc,  iii,  c.  2,  s.  2,  pp.  364,  C.  219,  by  Lord  Kenyon.  Upo.i  iho 
365,  367.  R.  v.  Smith,  i  Leach,  Cr.  subject  of  the  admissibility  of  convic- 
C.  2S8.  Though  the  judgment  on  the  tions  as  evidence  in  civil  cases,  see 
record     is   drawn    up    irregularly,    and  infra,  sect.  3. 

erroneous,  proof  of  the  conviction  will         (5)  2    Sauni.    159,    a.,    note   by  the 
be  sufficient.     R.  v.  Baldwin,  3  Campb.     editor. 


(s)  See  Note  5S1,  p.  820.     {t)  See  Note  582,  p.  820. 


332 


Of  Verdicts  and  Ju  Igments, 


[Ch.  3. 


respective  highway  lying  within  them,  and  if  the  districts,  in 
which  the  road  incHcated  is  not  situate,  can  show  that  tliey  had  no 
notice  of  the  former  indictment  (the  defence  having  been  made 
and  conducted  entirely  by  the  district  within  which  the  road  lies,) 
the  Court  will  consider  the  indictment  as  being  substantially 
against  that  district,  and  give  the  other  districts  leave  to  plead  the 
prescription  to  a  subsequent  indictment  for  not  repairing  the  high- 
ways in  the  parish.  (1) 

Judgment  evi-  -^  judgment  is  evidence,  in  many  cases,  for  or  against  parlies 
dencebyway  yylio  were  Strangers  to  the  former  suit,  when  offered  as  proof  of 
of  inducement.  ,,  ,    r     ^     t  c   ■     \  .       ,i  .•  an 

Proof oftitle.    a  collateral   fact,   by    way  oi   mducement   to    the   action.      Ihus, 

where  a  party  claims  under  an  execution,  the  judgment  in  the  for- 
mer suit,  under  which  the  execution  issued,  is  part  of  his  titl©^ 
and  admissible  in  evidence,  though  the  other  party  may  be  a 
stranger  to  that  suit.  So,  if  a  record  of  conviction  or  attainder  is 
part  of  a  title,  it  is  admissihle  in  evidence,  as  such,  between  oth- 
Proof  of  dain-  er  parties.  Where  the  defendant  is  liable  to  pay  the  amount  of 
»g^-  damages,  which  a  third  person  has  recovered  in  a  suit   against  the 

plaintiff,   the  verdict    in   that   suit  will    be  evidence  to    prove   the 
amount.  (2)  (tt) 


Replevin. 


Tenancy. 


In  an  action  of  assumpsit  by  A.  against  B.,  for  a  rent  due  from 
a  certain  day,  it  has  been  held  that  a  judgment  in  an  action  of  re- 
plevin between  B.  and  C,  (in  which  C.  niade  cognizance  as  bailiff 
of  A.,  and  one  of  the  issues  found  against  B.  in  that  action  was, 
that  he  held  the  premises  at  the  time  of  the  distress,  as  assignee  of 
the  original  tenant,  a  bankrupt,)  is  evidence  of  B.'s  tenancy.  (3)  (i;) 


Assumpsit.  In  assumpsit,  for  goods  sold  and   delivered  against  two  defend- 

ants (one  of  whom  suffered  judgment  by  default,  and  the  other 
defended,)  the  question  at  the  trial  was,  whether  the  defendants 
were  partners  at  the  time  when  the  goods  had  been  delivered. 
Lord  Kenyon  held,  thai  a  verdict  on  an  issue,  directed  by  the 
Court  of  Exchequer,    to   try   the   fact   of   partnership,    was   con- 

(i)   R.   V.  Townseiid,    1    Doug.    421.  N.    R.  Company,    supra,    p-    326,    and 

R.  V.  Eardisland,  2  Campb.  494  other  cases   there  cited. 

(2)    On   tliis   account    the   defendant         (3)  Hancock    v.  Welch   and   Cooper, 

would    not   have  been  a  competent  wit-  1    StarUie,  N-    P-  C.  347.     Lord    Ellen- 

nes3   in    a   former   suit.     See    Green  v.  borough  held  it  to  be  conclusive. 


(u)  See  Note  583,  p.  821.     («)  See  Note  584,  p.  824. 


Sect.  2.]        ivith  reference  to  the  Subject-matter.  S33 

elusive  evidence  of  a  subsisting  partnership,  and  that  it  could  not 
properly  be  deemed  res  inter  alios  acta,  as  both  the  defendants  had 
been  the  parties  on  record  in  that  suit,  and  it  was  open  to  either  of 
them  by  any  evidence  l£>  rebut  the  idea  of  a  partnership.  (1)  (iv) 


Sect.  II. 

Of  Judgments^  viilh  reference  to  the  Subject-matter  of  the  Suit. 

The  general  rule  laid  down  in  Chief  Justice  Eyre's  judgment  in  General  rule, 
the  Dutchess  of  Kingston's  case  is,  that  the  judgment  of  a  court  of 
concurrent  jurisdiction,  directly  upon  the  point,  is,  as  a  plea,  a  bar, 
or,  as  evidence,  conclusive  between  the  same  parties,  upon  the 
same  matter  directly  in  question  in  another  court.  (2)  (x)  But  it  is 
not  evidence  of  any  matter  which  came  collaterally  in  question,  nor 
of  any  matter  incidentally  cognizable,  nor  of  any  matter  to  be  in- 
ferred by  argument  from  the  judgment.  (3)  (y) 

It  is  a    bar  to  any    other  action  of   the    same  nature  as    the  Bar  to  other 
/.         /  ^  \       -n  •  r     I  •  •  •         actions, 

first.  (4)      rJy    actions  ot    the  same  nature,  is  meant   actions  m  a 

similar  degree;  not  merely  those  which  have  a  similitude  of 
form.  All  personal  actions  are  of  the  same  degree;  therefore 
each  is  a  perpetual  bar.  (5)  Thus,  a  judgment  in  an  action  of 
debt  is  a  bar  in  an  action  of  assumpsit  on  the  same  contract.  (6) 
And  a  judgment  in  trespass,  when  the  right  of  property  is  de- 
termined, will  be  a  bar  in  trover  for  the  same  taking.  (7)  So,  a 
verdict  for  the  defendant  in  trover  is  a  bar  in  an  action  for  money 
had  and  received,  for  the  money  arising  from  the  sale  of  the 
same  goods.  (8)  (z)  One  great  criterion  for  trying  whether  the 
matter  or  cause  of  action   be  the  same,  is,  that  the  same  evidence 

(1)  Wlmteley  v.  Menheim  and  Levy,         (5)  2  Black.  Rep.  831. 

2  Esp.  N.  P.   C.   608.     And   see  Low-  (6)  Slade's  case,  4   Rep.   94.     Com. 

field   V.    Bencroft,    Bull.  N.    P.   40.     2  Dig.  tit.  Action,  (K.  3.) 

New  Rep.  371.  ^7)  Com.    Dig.     ib.      Putt   v.    Ros- 

(2)  See  ante,  p.  321.  ter,    2    Mod.    319.     3    Mod.     1,    S.    C. 

(3)  Judgment  in   Dutchess  of  King-  Sir   T.    Rayni.    472,    S.    C.     2    Black, 
ston's  case,  20  Howell,  538.  Rep.  831. 

(4)  Ferrar's  case,    6    Rep.   7;    Cro.  (S)  Hitchin    v.    Campbell,    2    Black. 
El.  667,  S.    C.     Sparry's   case,  5   Rep.  Rep.  827. 

6\.     Hitchit:    v.    Campbell,    2    Black. 
Rep.  827,  S31. 


(tv)  See  Note  585,  p.  824.  (x)  See  Note  586,  p.  824.  (y)  See  Note  587,  p.  826. 
(z)  See  Note  588,  p.  828. 


334  Of  Verdicts  and  Judgments,  [Ch.  2. 

will  maintain  both  the  actions.  But  where  the  plainiifl' failed  in 
his  first  suit,  on  account  of  some  defect  in  pleading,  or  from  hav- 
ing mistaken  the  form  of  action,  the  judi^raent  will  not  be  conclu- 
sive, and  he  may  bring  another  action  to  try  the  same  right.  (1)  (a) 

Several  causes       li*  the   plaintiff  on  tiie    trial  of  his  action  attempted   to  prove    a 

of  action,  only  demand  against   the  defendant,  and    failed  in  the  attempt,  he  can- 
part  proved.  ... 

not  set  it  up  again  in  a  second    action.      But  if  he  omitted    to  give 

any  evidence  of  the  demand  on  the  former  occasion,  though  he 
had  an  opportunity  of  doing  so,  he  is  not  precluded  from  doing 
it  afterwards.  Thus,  when  the  plaintifl'  in  a  former  action  de- 
clared on  a  promissory  note  and  for  goods  sold,  but,  upon  exe- 
cuting a  writ  of  enquiry  after  judgment  by  default,  gave  no  evi- 
dence on  the  count  of  goods  sold,  the  judgment  was  not  a  bar  to 
Award.  ^^'^  recovering  for  the  goods  in  another  action.  (2)  {b)      So,  it  has 

been  held,  that  an  award,  made  on  a  reference  of  all  matters  in  dif- 
ference between  the  parlies,  is  no  bar  to  any  cause  of  action,  which 
the  plaintiffhad  against  the  defendant  at  the  time  of  the  j'eference, 
if  it  appear  that  the  subject-matter  of  the  action  was  not  enquired 
into  before  the  arbitrator.  (3)  (c) 

If,  in  the  case  of  Seddon  v.  Tutop,  above  slated,  the  phiintiff  had 
given  any  evidence  at  all  on  the  account  for  goods  sold,  and  the 
verdict  had  included  this  with  the  rest  of  the  plaintiff's  demand, 
the  judgment  might  then  have  been  pleaded  as  a  judgment  recov- 
ered upon  the  same  identical  causes  of  action.  (4)  ((/) 

raenforver-^"      ^"  considering     the    eflect  of  a    former   judgment,  it    is  to    be 
dcit.  observed,  that    the  judgment    can  be  final  only    for  its  own  proper 

purpose  and  object,  with  reference  to  the  subject  matter  of  the 
suit,  and  upon  the  points  there  put  in  issue  and  directly  deter- 
mined, (t")  Therefore,  in  an  action  for  obstructing  a  walercouise, 
where  a  verdict  for  the  plaintiff  in  a  former  action,  wiiich  had 
been  brought  against  the  defendant  for  anoUier  obstruction  to 
the  same  watercourse,    was  offered    in  evidence  under  ihe  general 

(1)  Robinson's  case,  5  Rep.  33.  Martin  v.  Tlioriiton,  4  Esp.  N.  C.  F. 
6  Rep.    8,   a.     Com.    Dig.    tit.    Acliou,      ISO. 

(L.  4.)     2  Biaclv.  Rep.  831.  (4)  Sea   Lord    Bagot    v.    WilliiTis, 

(2)  Seddon  v.  Tutop,  6  T.  R.  607.         3  Darn.  &  Cress   235,  240. 

(3)  Ravee  v.  Farmer,  4  T.   R.    146 


(a)  See  Note  689,  p.  834.     {b)  See  Note  590,  p.  837.  (c)  See  Note  591,  p  840 
{(1)  See  Note  592,  p.  841.     (c)  See  Note  593,  p.  843. 


Sect.  2.]         loith  reference  to  the  Subject-matter.  835 

issue,  Lord  Mansfield  held,  that  the  plaintiff  had  not  obtained  such 
a  deteruiinaiion  of  his  right  by  the  foraier  verdict,  as  the  law  con- 
sidered conclusive.  It  could  only  be  conclusive  upon  the  right,  if 
it  could  have  been  used  and  were  actually  used  in  pleading,  by 
way  of  estoppel,  which  it  could  not  be  in  that  case.  (1)  (/) 

A  verdict  for  the  defendant,  in  an  action  on  the  case  for  widen- 
ing a  watercourse,  is  admissible  evidence,  under  the  general  issue 
in  a  second  suit  for  the  same  cause  of  action,  but  is  not  conclu- 
sive. (2)  {g)  And  a  recovery  by  the  plaintiff  in  a  former  action  of 
assumpsit  may  be  given  in  evidence  on  the  part  of  the  defendant, 
under  the  general  issue,  in  a  subsequent  suit  for  the  same  cause  of 
action.  (3)  {h) 

There  is  a  difference,  it  has  been  said,  between  real  actions  and  Real, personal, 
,         .  ,  ,      .  r        •     I  ,  r  1         actions, 

personal  actions,  as  to  the  conclusiveness  ot  a  judgment.      "  In  a 

personal  action,  as  debt,  account,  &c.  the  bar  is  perpetual;  for  the 
plaintiff  cannot  have  an  action  of  a  higher  nature,  and  has  no  rem- 
edy but  by  error  or  attaint.  (4)  But  if  the  plaintiff  be  barred  in  a 
real  action  by  judgment  on  a  verdict,  demurrer,  confession,  &c.,  yet 
he  may  have  an  action  of  a  higher  natui'e,  and  try  the  same  right 
again;  because  it  concerns  the  freehold  and  inheritance."  (5)  Now, 
although  it  is  true  that  the  same  matter  may  be  thus  tried  again, 
yet  the  former  judgment  is  no  less  conclusive  upon  the  immediate 
right  then  in  demand,  as  far  as  that  former  judgment  purports  to 
hind,  ?.\v.\  against  all  such  persons  as  it  is  competent  by  law  to 
bind.  A  judgment  is  final  for  its  own  proper  purpose  and  object,  j  , 
and  no  further.  A  recovery  in  any  suit,  upon  issue  joined  on  mat-  when  final, 
ter  of  title,  is  conclusive  u[-on  the  subject-matter.  Thus,  a  finding 
upon  title  in  iresjiass.  not  only  operates  as  a  bar  to  the  futuie  re- 
covery of  damages  for  a  trespass  founded  upon  the  same  injury, 
but  operates  also  as  v.Vi  eslopjjel  to  any  action,  for  an  injury  to  the 
same  si!p[)osed  right  of  possession.  (G)  {i) 

(1)  Sir  F.  F-velyn  V.  Ilaynes,  cited  (3)  StnfTbrd  v.  Clark,  2  Bing.  377. 
in  Outi-am  V  Morevvootl,  3  East,  365.  (4)  Ferrer's  case,  6  Rep.  7,  1st  Res. 
And  see  Cross  v.  Salter,  3  T.  R.  639.  (5)  See  the  judgment  in  Outram  v. 
Sintzenick  v.    Lucas,    1    Esp.  N.    P.  C.  Morewood,  3  East,  359. 

43.  (6)   lb.  354. 

(2)  Vooght     V.    Winch,    2   Barn.    & 
Aid.  662. 


(/  )  See  Note  594,  p.  844.     (g)  See  Note  595,  p.  848.    (A)  See  Note  596,  p.  849. 
(i)  See  Note  597,  p.  849. 


SS6 

Judgment  in 
ejectment. 


Of  the  Admissibilitij  of  Verdicts^         [Cli.  2. 

A  judgment  in  one  action  of  ejectment  is  not  conclnsive  in  an- 
other, in  consequence  of  the  fictitious  nature  of  the  proceedings. 
However,  it  is  conclusive  evidence  of  the  plaintiff's  title  against 
the  tenant  in  possession,  in  an  action  for  mesne  profits;  for  the 
plaintiff,  to  entitle  himself  to  recover  in  an  ejectment,  must  show 
a  possessory  right  not  barred  by  the  stativte  of  limitations.  Th's 
judgment,  like  all  others,  only  concludes  the  parties,  as  to  the  sub- 
ject-matter. It  proves  nothing  beyond  the  time  laid  in  the  demise; 
because  beyond  that  time  the  plaintiff  has  alleged  no  title,  nor  could 
be  put  to  prove  any.  As  to  the  length  of  time,  also,  during  which 
the  tenant  has  occupied,  or  as  to  the  value,  the  judgment  proves 
nothing,  for  the  same  reason.  (I)  (J) 


Sect.  III. 

Admissibility  in  Civil  Cases^  of  Verdicts  in  Criminal 
Proceedings. 

It  appears  to  be  a  general  rule,  that  a  verdict  in  a  criminal  pro- 
ceeding is  not  admissible  in  an  action  as  proof  of  the  fact,  which  is 
the  subject-matter  of  the  suit. 

The  objections  against  the  admissibility  of  such  evidence  seems 
to  be,  first,  that  the  parties  are  not  the  same  in  the  civil  suit;  as  in 
the  criminal  case;  and,  secondly,  that  the  party  in  the  civil  suit, 
on  whose  behalf  the  evidence  is  supposed  to  be  offered,  might  have 
been  a  witness  on  the  prosecution:  but  the  first  of  these  is  the 
principal  objection,  (k) 


Sentence  in 
ecclesiastical 
court. 


In  the  case  of  Hildyard  and  Grantham,  (2)  which  was  an 
issue  directed  by  the  Court  of  Chancery,  to  try  a  question  of 
legitimacy,  a  sentence  against  the  supposed  father  and  mother, 
upon  a  proceeding  against  them  in  the  consistory  Court  of  Lin- 
coln, for  living  together  in  fornication,  was  offered  in  evidence, 
to  prove  that  they  were  not  married:  but  the  whole  Court  of 
King's   Bench    were  of  opinion,    on  a   trial   at   bar,  that  the  sen- 

(1)  Asiin    V.   Parkin,     2  Barr-    668.  (2)    Cited     by    Lord     Hardwick    in 

See  Hunter  v.   Britts,  3  Campb.  455,  as  Brownsord  v.  Edwards,  2  Ves.  246,  and 

to  the  efFect  of  a  judgment    against  the  in  Rep.  temp.  Hard.  311. 
casual  ejector. 

( j)  See  Note  598,  p.  849.     (/c)  See  Note  599,  p.  850. 


Sect.  3.]  in  Criminal  Proceedings.  337 

tence  could  not  be  given  in  evidence;  "  because,  first,  it  was  a 
criminal  matter,  and  could  not  be  given  in  evidence  in  a  civil 
cause;  next,  because  it  was  res  inter  alios  acta,  and  could  notafiect 
the  issue;  but  they  held,  that  if  it  had  been  a  sentence  on  the  point 
of  marriage,  in  a  question  on  the  lawfuhiess  of  the  marriage,  it 
might  have  been  given  in  evidence,  being  the  sentence  of  a  court 
iiaving  proper  jurisdiction.'' 

In  the  case  of  Gibson  v.    Maccariy,  (i)  on  an   issue  to  try  the  Record  of 

r  •  ,  I  •  •  r        I  1  conviclion. 

genumeness  oi  some  ])romjssory  notes,  depositions  ol  a  deceased 
witness  having  been  read  on  the  part  of  the  plaintiff,  (in  which 
depositions  the  witness  swore,  tiiat  llie  defendant  hud  acknowledg- 
ed the  notes  in  question  and  also  another  note,)  it  was  pro[)osed, 
on  the  part  of  the  defendant,  to  sliow  by  a  record  of  conviction,  that 
the  plaintiff  had  since  been  convicted  of  forging  tl}is  otlier  note, 
mentioned  by  the  deponent;  for  such  evidence,  it  was  said,  wouki 
go  to  the  credit  of  the  deponent's  evidence,  as  to  the  acknowledg- 
ment of  the  notes  in  question;  and,  secondly.^  because  there  is  at 
all  times  a  liberty  given  to  examine  into  the  plaintiff's  character. 
But  this  evidence  was  opposed  on  the  part  of  ihe  plaintiff,  on  the 
ground,  that  no  record  of  a  criminal  action  can  be  given  in  evidence 
in  a  civil  suit,  because  such  a  conviction  mighi  have  been  upon 
the  evidence  of  a  parly  interesteti  in  the  civil  action;  and  Lord 
Hardwicke  is  reported  to  have  said,  "  that  the  general  rule  was  as 
had  been  slated  by  ilie  jilainiiff's  counsel,  (2)  and  that  it  had  lieen 
so  strictly  kept,  that  in  ilie  case  of  Hillyards,  on  a  question  of  legiti- 
macy, the  Court  refused  to  admit  a  sentence  of  excommunication 
in  the  spiritual  court,  for  fornication  between  the  father  and  mother 
of  the  party,  whose  legitimacy  was  impeached." 

Upon  an  issue  to  try  the  question  of  devise  or  no  devise,  a  coro-  Coroner's  in- 
ner's  inquest,  finding  the  deceased  a  lunatic,  was  offered  in  cvi-  '^"^*'" 
dence  against  the  plaintiff,  who  claimed  as  executrix,  for  the  pur- 
pose of  showing,  that  the  deceased  was  incompetent  to  n^ake 
a  will;  this  evidence  was  objected  to  on  tlie  part  of  the  plaintiff, 
and  the  Court,  were  equally  divided  in  opinion.  The  Chief 
Justice    (Parker)    was   of    opinion    that   the   inquest  ought   to   be 

(1)  Rep   lamp.  Hard.  311.  Ilalh.iway    v.    Barrow     mid    others,      1 

(2)  Ace.  by  Sir  J.  Mansfield,  C.  .1.  in     Campb    151.     See  also,  12  Mod.  337. 

Vol.  I.  43 


338  Of  the  Admissibility  of  Vtrdiets         [Cii.  "l. 

admitted,  "  because  it  was  for  the  plaintift''s  advantage,  as  the 
personal  estate  would  be  saved  by  the  finding  of  lunacy;"  and  he 
added,  thai  in  Lord  Derby's  case  an  inquest  post  mortem  was  allow- 
ed to  be  given  in  eviilence.  Mr.  Justice  Povvys  agreed  with  the 
Chief  Justice.  Mr.  Justice  Eyre  said,  ''  'I'his  is  a  criminal  matter, 
and  ought  not  to  be  given  in  evidence  in  a  civil  proceeding.  A 
verdict  on  an  indictment  for  battery  cannot  be  read  in  an  action  for 
the  same  battery.  An  inquest  post  mortem  is  in  the  nature  of  a  civil 
proceeding;  but  this  is  criminal,  for  it  might  induce  a  forfeiture  of 
the  goods,  if  he  had  been  found /eZo  de  se."  And  Mr.  Justice  Pratt 
said,  "  If  a  verdict  be  given  in  evidence,  it  must  be  between  the 
same  parties,  and,  therefore,  an  indictment  at  the  suit  of  the  king 
cannot  be  read  in  an  action  at  the  suit  of  the  party." 

Acquittal  ef  A  verdict  of  acquittal  on  an  indictment   for  an  assault  would  not 

assaalt.  ^^  evidence  against  the  plaintiff  in  an  action  for  the  same  assault: 

nor  would  a  conviction  on  the  plea  of  not  guilty  be  evidence  for  the 
plaintiff.  (/)  But  if  a  person  indicted  for  an  assault  plead  guilty  to 
the  charge,  and  the  record  has  been  considered  conclusive  against 
him  in  an  action  for  damages  for  the  same  assault:  (1)  (m)  it 
seems,  at  least,  to  be  admissible.  (2)  (n) 

Conviction,  its  A  record  of  conviction  is  conclusive  proof  of  this  fact,  that  the 
person  charged  has  been  convicted.  It  is  conclusive  also  of  his  in- 
competency as  a  witness  in  a  court  of  justice,  while  the  judgment 
must  stand  in  force  against  him.  (o) 

It  has  been  staled,  indeed,  by  high  authority,  that  a  con- 
viction in  a  court  of  criminal  jurisdiction  is  conclusive  evidence 
of  the  fact,  if  it  afterwards  come  collaterally  in  controversy 
in  courts  of  civil  jurisdiction.  (.3)  In  the  case  of  a  father  con- 
victed, on  an  indictnient  for  having  two  wives,  it  is  said  that 
the  conviction  would  be  conclusive  evidence  in  ar)  action  of 
ejectment,    where  the    validity    of    the  second    marriage    is    in 

(1)  Lamb.  Just.  B  2,  e.  9,  p.  427.  1808.  It  was  nn  undefended  cause  ; 
cites  9  H.  6,  60,  and  11  H   4,  65.  but     Mr      Baron    Wood    suggested    the 

(2)  This  point  was  so  ruled  by  objection,  and  after  consideration,  admit- 
Wood,  B.   in    an  action    for  assault    and     ted  the  record  in  evidence. 

battery,    tried    at     Leicester  Lent     Ass.  (3)  Bull.  N.  P.  245. 


(/)  See  Note  600,  p.  851.  {m)  See  Note  601,  p.  851.    (n)  See  Note  602,  p.  852. 
(o)  See  Note  603,  p.  852. 


Sect.  3.]  in  Criminal  Proceedings.  539 

dispute. (1)  In  support  of  this,  the  case  of  Boyle  v.  BoyIe(2)  is 
cited;  where  a  woman,  who  was  libelled  in  the  spiritual  court  in  a 
cause  of  jactitation  of  marriage,  applied  to  the  Court  of  King's 
Bench  for  a  prohibition,  suggesting  that  the  complainant  had 
been  convicted  of  bigamy  in  marrying  her;  and  the  Court  of  King's 
Bench  granted  the  prohibition.  The  best  report  of  this  case  is  in 
Comberbach,  whence  it  appears  that  Holloway,  C.  J.  and  Alli- 
bone,  J,  granted  the  [)rohibition  against  the  opinion  of  Powell,  J., 
'*  because,"  they  said,  "  the  libel  isfor  jactitation,  and  the  ecclesi- 
astical court  will  not  allow  the  plea."  Nothing  further  is  to  be 
found  in  the  case,  to  support  such  a  general  position,  (p) 

If  the  rule  is,  as  Mr.  Justice  Buller  has  laid  down  in  the  passage 
above  referred  to,  namely,  that  a  record  of  conviction  may  be  giv- 
en in  evidence,  on  the  same  matter,  in  a  civil  suit,  it  must  be  un- 
derstood, at  least  with  this  limitation,  that  the  party,  who  offers 
such  evidence,  was  not  a  witness  on  the  prosecution  (q)  To  ad- 
mit the  record  as  evidence  on  any  other  condition,  would  be  in  ef- 
fect to  allow  the  party  to  a  suit  to  give  evidence  for  himself.  The 
record  in  such  a  case  seems  upon  every  principle  inadmissible;  and 
the  rule  must  be  the  same,  whether  the  conviction  v.as  founded 
solely  on  his  testimony,  or  whether  his  testimony  was  corroborated 
by  other  evidence. 

On  a  trial  for  perjury,  committed  in  an  answer  to  a  bill  of  in-  Conviction  of 
junction,  the  person  who  was  sued  by  the  defendant  in  an  action 
then  pending,  and  who  in  consequence  filed  the  bill,  was  thought 
to  be  a  competent  witness, '(3)  on  the  ground  that  a  conviction, 
procured  by  his  testimony,  could  not  be  used  by  him  for  obtaining 
relief  in  equity  against  the  defendant's  action  at  law.  (4)  So  9"  ■n'"'"''"*- 
a  conviction  before  a  magistrate,  on  ilie  information  of  the 
injured  party,  is  not  evidence  in  an  action  brought  by  the  same 
party.  (5)  Ch.  B.  Gilbert  seems  indeed  to  have  been  of 
opinion,  that  where  the  verdict  in  the  criminal  prosecution  is 
supported    by   other    testimony,    besides   that   of   the    party  who 

(1)  Bull.  N.  P.  245.     2Atk.  412.  (A)    Bnrtiett   v.    PicUersgill,    4    East, 

(2)  3   Mod.    164.     Comberb.  72,   S.     577.  n.  {d} 

C  (5)  Smith   v.    Runiniems,  1    Campb. 

(3)  R.  V.  Boston,  4  East,  581.  Bur-  9.  Hathaway  v.  Barrow  and  others, 
don  V.  Browning,  1  Taunt.  521.  1  (>ampb.    151.     Burdon    v.   Browning, 

1  Taunt.  520. 


(p)  See  Note  604,  p.  852.     (q)  See  Note  605,  p.  853. 


340 


Acqnillal,  its 
eflect. 


Of  the  Judgments  of  Courts,  ^c.        [Cii.  3. 

wishes  to  avail  himself  of  it  in  the  civil  suit,  tliere  the  verdict  may 
be  properly  received  in  evidence:  for  though  the  verdict,  he  says, 
''  may  be  diminished  in  point  of  authority,  by  showing  that  it  was 
partly  founded  on  the  oath  of  the  party  interested  in  the  action,  yet 
the  jury  ought  to  respect  it  no  further  than  as  they  presume  it  was 
given  and  supported  by  other  witnesses  not  concerned  in  the  cause." 
(1)  It  may  still,  however,  be  objected,  that  the  fact  might  have 
found  credit  from  the  party's  oath;  and  since  this  evidence  is  so  in- 
termixed, that  it  cannot  appear  on  what  the  jury  relied,  the  verdict 
ought  not  to  be  admitted  at  all  as  evidence. (r) 

Though  a  conviction,  says  Mr.  Justice  Buller,  in  a  court  of  crim- 
inal jurisdiction,  is  conclusive  evidence  of  the  fact,  if  it  afterwards 
come  collaterally  in  controversy  in  a  court  of  civil  jurisdiction;  yet 
an  acquittal,  which  does  not,  like  a  conviction,  ascei'tain  facts,  is  no 
proof  of  the  reverse.  (2)  (s)  It  is,  hovvever,  conclusive,  that  the 
party  has  been  tried  for  the  offence,  and  was  not  proved  to  be 
guilty.  (0 

(1)  Gilb.  Ev.  2().  for    the  parish  on  a  second    indictment, 

(2)  Bull.  N.  P.  245.  Gilb.  Ev.  32.  R.  v.  St.  Pancrad,  Peake,  N.  P.  C. 
A  verdict  of  not  guilty,  on  an  indict-  219  As  to  acquittals  in  the  Exche- 
ment   against   a   parish  for  not   repair-  quer,  see  infra,  c.  3,  s.  3,  ad   fin. 

ing  a   road,  is   said   not   to  be  evidence 


CHAP.  !II. 


Of  the  Judgments  of  Courts  of  Exclusive  Jurisdiction. 


Genera!  rule.  The  great  principle  on  this  subject  is,  that  a  judgment  of  a 
court  of  exclusive  jurisdiction,  directly  upon  the  point,  is  conclusive 
between  the  same  parties,  upon  the  same- matter  coming  inciden- 
tally in  question  in  another  court  for  a  different  purpose :(7()  but 
that  the  judgment  either  of  a  court  of  concurrent  or  exclusive  ju- 
risdiction is  not  evidence  of  any  matter,  which  came  collaterally  in 
question  though  within  their  jurisdiction,  nor  of  any  matter  inci- 
dentally cognizable,  nor  of  any  matter  to  be  inferred  by  argument 
from  the  judgment.  ( 1 ) 

(I)    Judgment   of  Ch.    J.    De   Grey     Tr.   261,  fol    ed.     20  Howell's  St.  Tr. 
in  Duchess    of  Kingston's  case,   11  St.     538,  S.  C. 


(r)  See  Note  606,  p.  853.    (s)  See  Note  607,  p.  853.     {i)  See  Note 608,  p.  853. 
(u)  See  Note  609,  p.  S53. 


Sect.  1.]    Of  Sentences  in  Ecclesiastical  Couris.  341 

But,  alibough  such  sentences  are  conclusive,  and  cannot  be  Fraud. 
impeached  from  within,  like  all  other  acts  of  the  highest  judicial 
authority,  they  are  impeachable  from  without.  (1)  Fraud  is  an 
extrinsic  collateral  act,  which  vitiates  the  most  solemn  proceedings 
of  courts  of  justice.  Lord  Coke  says,  it  vitiates  all  judicial  acts, 
whether  ecclesiastical  or  temporal.  (2)  (v) 

In  treating  of  this  subject,  it  is  proposed  to  consider.  First,  Sen- 
tences of  Ecclesiastical  Courts:  Secondly,  Sentences  of  Courts  of 
Admiralty,  and  of  Foreign  Couris:  Thirdly,  .Judgments  in  rem  in 
the  Court  of  Exchequer,  and  by  Commissioners  of  Excise,  and 
Sentences  by  Colleges  in  the  Universities. 

Sect.   I. 

Of  Sentences  in  the  Ecclesiastical  Courts. 

Spiritual   courts   have    the   sole  and  exclusive  cognisance  of  Sentence  on 
,      .  ,.         ,.         1      ,      ,        T         r  •  /    X  A      1  question  of 

questionmg  or  deciding  dn-ectly  the  legality  ot  marriage  [lo).     And  marriage. 

the  temporal  courts  have  an  inherent  power  of  deciding  inci- 
dentally, as  far  as  temporal  rights  are  concerned,  either  upon 
the  fact  or  legality  of  a  marriage,  when  they  form  a  part  of  some 
more  general  issue  within  their  cognisance,  or  are  in  some  way 
connected  with  the  decision  of  the  proper  object  of  their  juris- 
diction. But  vvhere,  in  civil  causes,  the  ten^poral  courts  find 
the  question  of  marriage  directly  determined  by  the  ecclesi- 
astical court,  they  receive  the  sentence  as  conclusive  proof  of 
the  fact,  it  being  an  authority  accredited  in  a  judicial  proceed- 
ing by  a  court  of  competent  jurisdiction.  (3)  They  receive  it 
upon  the  same  principles,  and  subject  to  the  same  rules,  by 
which  they  admit  the  acts  of  other  courts.  A  sentence  of  Sentence  of 
nullity,  therefore,  and  a  sentence  in  affirmance  of  marriage,  have  °"  '  ^" 
been  received  as  conclusive  evidence,  on  a  question  of  legitimacy 
arising  incidentally  upon  a  claim  to  a  real  estate.  (4)  So,  a  sen-  jactitation, 
tence  in  a  cause  of  jactitation  has  been  received  as  evidence 
against  a  marriage,  upon  a  title  in  ejectment,  and  in  personal 
actions    immediately  founded    on    a  supposed    marriage.  (4)      In 

(1)  list.  Tr.  261.  case,   7    Co.  Rep    42.    Nedham's  case, 

(2)  Fermor's  case,  3  Co.  Rep.  7S.  b.  8    Rep.   1:35.  b.    Jones   v.    Bow,  Carth. 

(3)  Judgment   of  De   Gray,  Ch.    J.  225-     Da   Costa  v.    Villa   Real,    2  Str. 
11  St.     Tr.    261.        20    Howell,-  538.  960. 

Bunting's  case,  4  Co.  Rep.  29    Kenn's         (4)  11  St.  Tr.  261.     20  Howell,  53S. 


(f)  See  Note  610,  p.  854.     (w)  See  Note  611,  p.  856. 


342  Of  Sentences  in  Ecclesiastical  Courts.  [Cli.  3. 

all  ihese  cases,  said  C.  J.  I)e  Grey,  the  parlies  to  the  suit,  or  at 
least  the  parties  against  whom  the  evidence  was  received,  were 
parties  to  the  sentence,  and  had  acquiesced  under  it,  or  claimed 
under  those  who  were  parties,  and  who  had  acquiesced. 

Between  what      The  sentences  of  the  spiritual  courts  are,  in  general,  not  evidence, 
par  les.  except  against   the  parties   to  the  suit,  in  which  the  judgment  was 

given,  or  against  those  claiming  under  them.  To  make  them 
conclusive  against  strangers,  would  be  giving  them  an  effect  beyond 
what  a  judgment  in  the  courts  of  common  law  is  allowed  to  have. 
In  a  few  particular  instances,  indeed,  namely,  where  issue  is  joined 
on  the  record  in  certain  real  writs,  on  the  legality  of  marriage  or 
its  immediate  consequence,  on  general  bastardy,  or  on  the  fact  of 
profession,  or  deprivation,  in  those  cases,  upon  the  issue  so  formed, 

Certificate  of    ([^q  mode  of  trying  the  question  is  by  reference  to  the  ordinary,  and 
ordinary.  ,  .  .-.  ,  ,         ,  ,  i  •       , 

his  certificate,  when  returned  and  entered  on  record  in  the  tempo- 
ral courts,  is  a  perpetual  and  conclusive  evidence  against  all  the 
world  on  that  point;  which  exceptionable  extent  was  the  occasion 
of  a  statute  in  the  reign  of  Henry  the  Sixth,  requiring  certain  pub- 
lic proclamations  to  be  made,  for  persons  interested  to  come  in 
and  be  parties  to  the  proceeding.  (1)  {x) 

Sentence  in  A  sentence    in    the    cause  of  jactitation  is    evidence    against  a 

cause  of  jacti-  prjaj-rJage,  and  has  been  received  as  such,  upon  a  title  in  eject- 
ment, and  in  personal  actions  immediately  founded  upon  a  sup- 
posed marriage;  (2)  but  it  will  not,  like  a  sentence  of  nullity,  be 
conclusive  evidence.  They  are  sentences  of  a  very  different 
nature  and  operation.  A  cause  of  jactitation  is  ranked  as  a 
cause  of  defamation  only,  and  not  as  a  matrimonial  cause,  un- 
less when  the  defendant  pleads  a  marriage:  and,  whether  it 
continues  a  matrimonial  cause  throughout,  as  some  say,  or 
ceases  to  be  so  on  fiiilure  of  proving  a  marriage,  still  the  sentence 
has  only  a  negative  and  qualified  effect,  namely,  that  the  par- 
ty has  failed  in  his  proof,  and  that  the  libellant  is  free  from 
all  matrimonial  contract  "  as  far  as  yet  appears,"  leaving  it 
open  to  new  proofs  of    the    same  marriage    in  the  same  cause, 

(1)    Part   of    the     judgment    of    De         (2)   11  St.  Tr.  261.  20  Howell,  638. 
Grey,  C.  J.  11  St.  Tr.  261.  20   Howell, 
538. 

(x)  See  Note  612,  p.  857. 


Sect.  1.]     Of  Sentences  in  Ecclesiastical  Courts.  343 

or  to  any  other  proofs  of  that  or  any  other  marriage  in  another 
cause.  And  if  such  sentence  is  no  plea  to  a  new  suit  in  the  eccle- 
siastical court,  and  is  not  conclusive  there,  in  cannot  conclude 
another  court,  which  receives  the  sentence,  from^going  into  new 
proofs  to  make  out  that  or  any  other  marriage.  (1)  Admitting  the  Its  effect, 
sentence  in  its  full  extent  and  import,  it  only  proves,  that  it  did  not 
yet  appear  that  the  parties  were  married,  and  not,  that  they  were 
not  married  at  all;  and,  by  the  rule  laid  down  by  Ld.  Ch.  J. 
Holt,  (2)  such  sentence  cannot  be  proof  of  any  thing  to  be  inferred 
by  argument  from  it;  and,  therefore,  it  is  not  to  be  inferred  that 
there  was  no  marriage  at  any  time  or  place,  because  the  court  had 
not  then  sufficient  evidence  to  prove  a  marriage  at  a  particular 
time  and  place.  In  the  Duchess  of  Kingston's  case,  therefore, 
on  a  charge  of  polygamy,  where  a  sentence  in  a  spiritual  court,  in 
a  cause  of  jactitation  of  marriage,  was  offered  as  conclusive 
evidence,  to  disprove  the  second  marriage,  the  Judges  held,  that 
this  sentence  (even  admitting  it  to  be  evidence  on  a  criminal  pro- 
secution) could  not  be  conclusive,  but  that  the  sentence  and  the 
judgment  of  the  Lords  might  well  stand  together,  and  both 
propositions  be  true.  The  sentence  would  only  prove,  that  it 
did  not  then  appear  that  the  parties  were  married;  but,  because 
the  court  had  not  then  sufficient  proof  of  the  marriage  specified, 
it  could  not  be  inferred,  that  there  was  no  marriage  between  them 
nt  any  other  time  or  place. 

The   ecclesiastical    courts     have    also   exclusive    authority   in  Probates,  and 
deciding   on   the  validity   of  wills   of  things   personal,  (y)  and  in  ministraUon*  " 
granting  administration.  (3)       And     their  sentences,    pronounced 
in   the   exercise  of   this   sole   and  exclusive  jurisdiction,   are   so 
binding   on  the   temporal  courts,  as  to   be  conclusive  evidence  of 
the   right    directly   determined;  but   it    will    not   be   evidence   of  General  role, 
any  collateral   matter,    which   may    possibly   be   collected    or   in- 
ferred from  the  sentence  by  argument.  (4)  (z)     Therefore,  letters  of 
administration,  which   have  been  granted   to  a   person  as  adminis- 

(1)  11  St  Tr.  261.     20  Howell,  538.  (4)  Blackham's   case,   1    Salk.   290. 

(2)  Blackham's  case,  1  Salk.  290.  Thompson  v.   Donaldson,  3   Esp.  N.  P. 

(3)  Noel  V.   Wells,  1    Lev.  235.     1  C.  63. 
Ld.  Raym.  262.     3  T.  R.  130. 


(y)  See  Note  613,  p.  867,     (z)  See  Note  614,  p.  857. 


.'544  Of  SenUnce'^  in  Eccle.^iasiical  Courts.       [Cli.  3. 

tralor  of  the  effects  of  A.  B.  deceased,  arc  not  legitimate  proof  of 
A.  B.'s  death.  (1)  (a) 


Proof  of  will  of  ^  probate,  unrepealed,  is  conclusive  evidence,  in  civil  cases,  of 
the  validity  of  such  will;  (b)  and,  therefore,  payment  of  money  to 
an  executor,  who  has  obtained  probate  of  a  forged  will,  is  a  discharge 
to  the   debtor  of  the  intestate,  though   the   probate   be  afterwards 

Of  executor's  declared  null  and  void.  (2)  (c)  A  probate  is  the  only  legitimate 
evidence  of  personal  property  being  vested  in  an  execulor,  or  of 
the  appointment  of  executor;  (d)  the  original    will   is  not  admissi- 

Act  of  devise  ble  for  that  purpose.  (3)  (e)  But  the  probate  of  a  will,  devising  real 
properly,  is  not  evidence  of  ihe  contents  of  a  will,  as  to  such  prop- 
erty; (4)  not,  even  when  the  original  will  is  lost,  (5)  (except,  in- 
deed, as  a  mere  copy;)  the  spiritual  court  having  no  power  to 
authenticate  such  a  devise,  as  far  as  it  relates  to  land.  (/) 


of  freehold- 


Forgery  of 
probate. 


The  adverse  party  may  show,  that  the  probate  is  forged,  because 
such  evidence  supposes  that  the  spiritual  court  has  given  no  judg- 
ment; or  if  the  probate  was  granted  by  an  inferior  court,  the  ad- 
verse party  may  show  that  the  testator  left  bona  notabilia,  for  then 
the  court  had  not  jurisdiction.  (G)  (g)  But  evidence  will  not  be 
admitted  to  prove  that  another  person  was  appointed  executor,  or 
that  the  testator  was  insane:  (7)  that  would  be  to  falsify  the  pro- 
ceedings of  the  ordinary,  in  cases  where  he  is  exclusive  judge,  (/i) 


Sentence  not        It  appears,  then,  that   the   sentence  of  an   ecclesiastical   court, 

conclusive  in      ,.         ,  •,•!••,  r         ••!•.• 

criminal  cases.  Qi''6Ctly  upon  a  pomt  withm  US  peculiar  jurisdiction,  is  con- 
clusive on  the  same  matter,  coming  incidentally  into  question 
in  a  civil  case  in  another  court.  But,  although  the  law  stands 
thus  with  regard  to  civil  suits,  proceedings  in  matters  of  crime, 
and  especially  of  felony,  fall  under  a  different  consideration;  (8) 
first,   because  the    parties   are    not   the   same,   for  the    king    (in 

(1)  Thompson    v.    Donaldson,  3  Esp.  154.     St     Leger   v      Adams,    ib.    751. 

N    P  C.  63.  Dike  v.  Polhill,  ib.  744. 

"(2)  Allen  v.  Dundas,  3  T   R    125.  (6)   1   Sid.    359.     Bull.  N.    P.    247. 

(3)  Coe  V.  Westernham,  2  Selvv.  N.  5  Rep.  30.     1  Lev.  236. 
P.  730.  (7)   1  Lev.  2.36. 

(4>  Bull.  N.  P.  245.  (8)   11    St.    Tr.    261.      20  Howell's 

(5)  Doe  d.  Ash  v.  Calvert,  2  Campb.  St.  Tr.  538. 
389.     Hoe    v.    Nathorp,   1    Ld.    Kaym. 


(a)  See  Note  615,  p.  858.  (b)  See  Note  616,  page  858.  (c)  See  Note  617,  p. 
859  (d)  See  Note  618,  p.  859.  (e)  See  Note  619,  p.  860.  (/)  See  Note  620, 
p.  861.     (g)  See  Note  621,  p.  870.     {h)  See  Note  622,  p.  875. 


Sect,  l.j     OJ Sentences  in  Ecclesiastical  Courts.  345 

whom  the  trust  of  prosecuting  |niblic  offences  is  vested,  a  trust 
executed  by  liis  iujmedinie  orders,  or  in  his  name  by  some 
prosecutor,)  is  not  a  parly  lo  such  p.roceedings  in  ihe  ecclesiastical 
court,  and  cannot  be  adii'itted  lo  defend,  examine  witnesses,  or 
in  anv  n.nnner  intervene  or  appeal:  secondly,  such  a  doctrine 
would  tend  to  give  the  spiritual  courts,  which  are  not  permitted 
to  exercise  any  judicial  cognisance  in  matters  of  crime,  and  imme- 
diate influence  in  trials  for  <  ffences,  and  to  draw  the  decision 
from  the  course  of  common  law,  lo  which  it  solely  and  peculiarly 
belongs.  (1)  The  case  of  the  King  v.  Vincent,  (2)  therefore,  Ir.diciinent  for 
(where  the  probate  of  a  will  is  said  to  have  been  admitted,  as  "  =  "^^^ 
conclusive  evidence  of  its  validity,  on  an  indictment  for  the  forgery 
of  the  same  will,)  has  been  frequently  much  questioned,  and  ai 
length  expressly  overruled.  (3) 

For  the   same   reason,  a  sentence  in  a    spiritual  court,   on  the  IndictiDcnt  for 
r  ■  Ml  •  •     •      1  bigamy. 

question   of  marriage,    will  not  preclude  enquiry,  on   a   criminal 

charge  of  polygamy  ;  unless  it  is  made  to  have  such  an  effect 
by  an  express  provision  of  the  legislature.  Now,  by  the  statute 
of  1  J.  1,  c.  11,  which  makes  polygamy  a  felonious  offence,  and 
for  the  trial  of  this  offence  necessarily  gives  to  the  temporal 
courts  a  cognisance  of  the  lawfulness  of  marriage,  it  is  [;ro- 
videdj  that  the  act  "shall  not  extend  to  any  person  divorced  by 
a  sentence  in  the  ecclesiastical  court,  nor  to  any  persons  where 
the  former  marriage  has  been  by  the  ecclesiastical  court  de- 
clared null   and  void."     There   are   two  cases,    then,  put   by  the  gg^jg^j.^ 

statute,   in   which  the    sentence  of    the   ecclesiastical  court   will   when  con- 

,  .     .      ,  .  ,         ,  c  elusive. 

protect  against  the  criminal  enquiry,  namely,  the  case  ol  a  sen- 
tence of  divorce,  and  the  case  of  a  sentence  of  nullity  of  mar- 
riage. (4)  But  the  statute  makes  no  exception  in  favour  of  a 
sentence  in  a  cause  of  jactitation:  and  as  such  a  sentence  is  not 
conclusive  even  in  the  court  where  it  was  delivered,  and  de- 
clares not  directly,  but  only  collaterally,  the  invalidity  of  mar- 
riage, it  has  been  adjudged  not  to  be  a  bar  to  a  criniinal  prosecu- 
tion. (5) 

(1)  11    St.   Tr.    261.     20  Howell's     U.  842,  343,  n. 

St.  Tr.  538.  (4)   1  East,  P.  C.  467. 

(2)  1  Str.  481.  (5)    Duchess  of  Kingston's    case,  11 

(3)  R.  V.  Gibson,  R.    v.  Buttery  and  St.  Tr.  260. 
M'Namara,  S.  P.    Russ.  &    Ry.   Cr.  C. 

Vol.   f.  44 


3i5  Of  Sentences  in  Couris  of  Admiralty y     [Cli.  5. 

Sentence  im-         Ii  lias  been  before   mentioned,    thai  jiKleinents   and   sentences 
peailuible  for        .  ...  ,.,..,  ,      ,  ,      , 

fraud.  ol  courts  ol  juslice,  or  any  other  judicial  act,  may  be  nnpeached 

by  evidence  of   fraud   or   collusion.        And   such   evidence   was 

adjudged  to  be  admissible,  on  the  part  of  the  prosecution,   in  the 

case  of  the  Duchess  of  Kingsto;i,  who   was   tried   for   polygamy. 

A   distinction,  in   this  respect,  has   been  made  between   the   case 

of  a   stranger,    (who   cannot  come   in   and   reverse  the  judgment, 

and  therefore  of  necessity    he  must    be   permitted    to  aver,    that  it 

was  fraudulent,)  and   the  case  of  a  parly  to   the   proceedings;  the 

Bartk>d^"  "parly   himself  cannot  give  evidence  of    fraud,  but  must   apply  to 

the  Court,  which  pronounced  the  judgment,  to  vacate  it.     Thus, 

in  the  case  of  Prudham  v.  Phillips,  (1)  where  the  defendant  proved 

her  marriage   with  one    M.,   in  answer  to  which   a  sentence  of  an 

ecclesiastical  court   was   produced,  (to   which  sentence  she  was 

a  party,)    s'lov.ing  that  she   was  at   the   lime   married  to  another 

person.   Chief  Juslice    Willes,   after  much    debate,    refused    to 

allow  the  defendant  to  prove,  that  the  sentence   had  been  obtained 

by  fraud,  (i) 

Sect.    IL 

OJ  Sentences  in  Courts  of  Admiralty  and  Foreign  Courts. 

Sentence  in  ,,,  -r     ,  r      '         *    i     •     i        i  i  i  i  »     • 

questions  of  ^  ^ •  ^    JuclgG   of    ine   Admu-aity   has    the    sole    and  exclusive 

piize.  cognisance  in  questions  of    prize   or  not   prize  at  sea.  (2)      The 

true  reason  of  this  rule  is,  that  prizes  are  acquisitions  jure  belli, 
and  the  jus  belli  is  to  be  determined  by  the  law  of  nations,  and 
not  by  the  particular  municipal  law  of  any  country.  A  sentence, 
therefore,  in  the  prize  court,  deciding  the  question  of  prize,  is 
conclusive,  in  all  it  professes  to  decide,  on  the  same  point  in- 
cidentally arising  in  courts  of  common  law.  "  It  has  been 
clearly  settled,"  said  the  Master  of  the  Rolls  in  the  case  of 
Kindersley  against  Chase,  (3)  "  from  the  time'  of  Lord  Hale 
down  to  the  })resent  period,  that  a  sentence  of  condemnation  in 
a  court  of  admiralty,  uhen  it  proceeds  on  the  ground  of  enemy's 
property,  is  conclusive,  thai  the  property  belongs  to  enemies, 
and  not  only  for  the  immediate   purpose  of  such  a  sentence,   but 

(1)  Ambler,  7G3,    cited    by  t!:e    Ld.  Caux  v.  Eden,    2  Doug.    600.     Lindo  v. 
Ch.  from  a  MS.  note  of  Serjt   Parker.  Rodney,  n.  1.  (ib.) 

(2)  Thompson  v.  Smith,    1  Sid.  320.  (3)  Coclipit,    July,    1801,    Park  Ini. 
BrowD  V.   Frankivn,    Carth.    476.      Le  490. 


(t)  See  Note   623,  p.  877. 


Sect.  2. J  and  in  Foreign  Couits.  347 

is  binding  in  all  courts  and  jigaiiist  all  persons.  The  sentence  of 
a  court  of  admiralty,  proceeding  in  rem,  must  bind  all  parties,  must 
bind  all  the  world."  (j) 

The  sentence  of  a  forei2;n  court  of  admiraliy  also,  which  is  ac-  ^entence  of 

■"         .  f.  .....  foreij^n  court 

knowledged  by  the  law  of  nations,  and  of  competent  juriaihciion,  of  admiralty, 
deciding  the  question  of  property,  is  conclusive,  if  the  same  ques- 
tion arise  in  this  country.  (1)*     And  though  in  the  case  of  Hughes 
V.   Cornelius,  the  leading  case  on  this   subject,  thr>  question  upon 
the  foreign   sentence   arose  in  an  action  of  trover,  and   not   in  an 
action  on  a  policy  of  iniiurance,  where  the  non-compliance  with  a 
warranty  of  neutrality  is  in  dispute,  yet,  from  that  period  down  to 
the  present,  the  doctrine,  there  laid  down,  has  been  considered   as 
applicable  to  questions  of  warranty  in   actions  on    policies,  as  to  General  ruU 
questions  of  property  in  actions  of  trover.  (2)  (/c)      And  it  may  now 
be  assumed  as  the  settled  doctrine  of  courts  of  English   law,  that 
all  sentences  of  foreign  courts,  of  competent  jurisdiction  to  decide 
questions  of  prize,  are  to  be  received  here  as  conclusive  cvideaca 
in  actions  upon   policies  of  insurance,  on   every  sultject   immedi- 
ately and  properly  within  the  jurisdiction  of  such   fureigi  courts, 
and  upon  which  they  have  professed  to  decide  judicially.  (3j      "  it 
is  now  too  late,"  said   Mr.  Justice  Lawrence," (4)    "  to  examine 
the  practice  of  admitting   these  sentences   to  the  extent   to  whicii 
they  have  been   received,   supposing  that   practice   niigliL   at  first 
have  appeared  doubtful.     On  the  autliority  of  those  decisions  men 
have  acted  for  a  long  series  of  years,  and   entered    i:ito  contracts 
of  assurance  in  this  country,  with  a  knowledge  of  sucli   decisions, 
and  in  expectation  that  the  questions,  arising  out  of  such  cnniracts, 
to  which  the  decisions  are  applicable,  will  be  ruled  by  theiu." 

(1)  Hughes  V.  Cornelius,  2  Show.  130.  Chiisti.^  v.  Se.?retin,  S  T.  R. 
Rep.  232.  Sir  T.  Ray,  473,  S.  (J.  19!5.  Kiader.sley  v  Ch  isd,  i^ar;<,  Im. 
Bernardi  v.    Motteu.f,    2     Doug.    Rep      486. 

575.  (4)    Lothi;iii    v.    llendersoi),    3    lioa. 

(2)  By  Ciiambre,  J.,  Lothian  v.  Ez.  Pull.  624.  Baring  v.  Chicot,  4 
Henderson,  3  Bos.  &  Pull.  513.  Bos.  &,    Pull.  214.     Sea  1  Campb.  402. 

(3)  Bolton    V.    Gladstone,    5     East, 


*  This  principle,  which  is  est.ibiished  i;i  osjr  courts  of  jmtice,  previila  also 
in  those  of  the  United  Slates  of  America.  See  .Jtli  vol.  of  Cranch'*  IL^porU 
of  Cases  adjudged  by  the  Supreme  Court  of  tlis  L'niied  Slates,  pp.  2G7,  271, 
612,  513. 


(;■)  See  Note  624,  p.  .?S0.     (/)  See  Note  C25,  p  881. 


348  Of  Sentences  in  Co'irh  of  AdmiralUj,     [Ch.  3. 

Conclusive  of        Sucli  a  sentouce  of  condemnation  will   be  bindins;  on  the  rights 
what.  .  .  .  .  .        . 

of  third  persons,  as  well  as  on  the  parties  to  the  original   suit;    it 

is  conclusive  between  the  assured  and  the  underwriier,  with 
respect  to  every  fact  which  it  professes  to  decide.  (Z)  Thus,  when 
it  proceeds  on  the  ground  of  enemy's  property,  it  is  conclusive, 
that  the  property  belongs  to  enemies,  not  only  for  the  immediate 
purpose  of  such  a  sentence,  but  it  is  binding  on  all  courts  and 
against  all  persons. (1)  And  the  sentence  is  binding,  whether  it 
proceed  to  condemn  the  ship  expressly  as  being  enemy's  property, 
or  whether  such  a  ground  of  decision  can  only  be  collected  from 
other  parts  of  the  proceedings;  and  this,  although  it  appear  on 
the  face  of  the  sentence,  that  the  prize-court  arrived  at  the  con- 
clusion through  the  medium  of  rules  of  evidence  and  rules  of 
presumption,  established  only  by  the  particular  ordinances  of  their 
own  country,  and  not  admisiible  on  general  principles.  (2) 


Effect  of  sen- 
tence. 


The  sentence  is  conclusive  evidence  of  the  points,  upon  which 
it  professes  to  decide.  (3)(m)  Thus,  for  example,  if  it  proceeded 
upon  the  ground  of  the  properly  not  being  neutral,  it  is  con- 
clusive against  the  insured,  that  he  has  not  complied  with  his 
warranty.  [A)  If  no  special  ground  is  stated,  and  the  ship  is 
condemned  generally  as  lawful  prize,  it  is  to  be  presumed  from 
the  condemnation,  as  no  other  cause  appears,  that  the  sentence 
proceeded  on  the  ground  of  the  property  belonging  to  an 
enemy;  and  the  sentence,  in  such  a  case,  has  been  held  to  be 
conclusive  evidence  that  the  properly  was  not  neutral.  (5)(n)  In 
the  case  of  Bernardi  v.  Motteux,  (6)  where  there  was  some 
ambiguity  in  ihe  sentence,  so  that  the  precise  ground  of  the 
determination  could  not  be  collected,  the  Court  of  King's  Bench 
considered  themselves  at  liberty  to  examine,  whether  the  ground 
on  which  the  sentence  proceeded,  but  which  was  not  stated, 
actually  falsified    the   warranty  contained  in  the   policy.      Hence 

(1)  Kindersley   v.   Chase,  Park,  Ins      Everth   v.     Hannom,    2    Marshall,    72. 
490.      All    the   cases   on    this   subject     Marshall  v.  Parker,  2  Campb.  70. 

are  there  collected.  (4)   Barziliay  v.     Lewis,  Park,    Ins. 

(2)  Bolton    V.     Gladstone;    5     East,     469.      Baring   v.    ClugeU,  3    Bos.     & 
155.     2    Taunt.    85.       Baring    v.    Roy,     Pull.  201. 

Ex.  Ass.  Comp.  5  East,  99.  (5)  Saloucci     v.     Woodmas,     Park, 

(3)  Christie    v.    Sccretan,    S   T     R.     Ins.  471.     8  T.  R.  444. 

l96.^    Fisher    v.   Ogle,  I    Campb.    4 IS.  (6)  2    Dougl.   574.     5   Bos.  &  Pull. 

2\5. 


(i)  See  iNote  628,  p  831.    (/«)  See  Note  627,  p.  883.    {n)  See  Note  628,  p.  883. 


Sect.  2. J  and  in  Foreign  Courts.  349 

it  follows,  that  it  does  not  lie  on  the  party,  who  produces  the  sen- 
tence, to  show  that  it  has  proceeded  on  the  ground  of  enemy's 
property  ;  but  it  is  incumbent  on  the  other  party,  who  objects  to 
the  sentence,  to  show  that  it  proceeded  on  some  other  ground.  ( 1 )  (o) 

Where  the  sentence  professes  to  be  made  on  particular  grounds,  When  not  con 

'  I  •    T  elusive, 

which  are  set  forth  in  the  sentence,  but  which  appear  not  to  war- 
rant the  condemnation,  the  sentence  will  not  be  conclusive  as  to 
such  facts.  (2)  (p)  Of  if  the  sentence  has  not  decided  the  question 
of  property,  nor  declared  whether  it  be  neutral,  but  condemned  the 
property  as  prize,  solely  on  the  ground,  that  the  ship  had  violated 
an  ex  parte  ordinance,  to  which  the  neutral  country  had  not 
assented,  or  on  the  ground  of  a  foreign  ordinance  against  the  law 
of  nations,  such  a  sentence,  though  conclusive  of  the  question  of 
prize  or  no  prize,  would  not  be  conclusive  of  the  fact,  whether  or 
not  the  ship  were  neutral.  (3)  (7) 

Lastly,  sentences  of  condemnation  in  foreign  courts  of  prize  are  Not  admissi- 
,..,,,,  ,  .  ,  !•        ^      *i      h\e,  when, 

admissible,  only  where  such  courts  are  constituted  according  to  tne 

law  of  nations,  and  exercise  their  functions  either  in  the  belligerent 

country,  or  in  the  country  of  a  co-belligerent,  or  ally  in  the  war.  (4) 

It  has,  therefore,  been  determined,  that  a  sentence  pronounced  by 

the   authority  of  the  capturing    power,  within  the  dominions  of  a 

neutral    country,    to  which  the  prize    may    have    been    taken,  is 

illegal,  (5)  and  consequently    would  not  be  admissible  evidence  to 

falsify  the  warranty  of  neutrality,  (r) 

The  sentence  of    any  other  foreign   court    of   competent   ju-  Sentence  of 
.    ,.     .  ,.,,.,•  •  1-1  1     other  foreign 

nsdiction,    directly    deciding    a  question,    which    was    properly  courts. 

cognizable  by   the   law   of  the  country,  seems    to  be  conclusive 

here,  if  the   same  question  arise   incidentally  between    the   same 

parties    in    this  country.      Thus,  the  sentence   of  a  foreign  court 

of    competent  jurisdiction,    directly    establishing    a    marriage    in 

(1)  Kindersley  v.  Chase,  Park,  Ins.  Bolton  v.  Gladstone,  2  Taunt.  85,  95. 
490.  See  2  Campb-  154. 

(2)  Calvert  v.  Bovil,  7  T.    R.     623,         (4)  Oddy  v.  Bovil,  2  East,   473. 

8  T.  R.  444.  (5)    HavelocU    v.  Rockwood,     8  T. 

(3)  Pollard  v.  Bell,  8  T.  R.  444.  R.  268.  Case  of  the  Flad  Oven,  8  T. 
Bird  v.  Appleton,  8  T.  R.  562  Ba-  R.  270,  n.  (a);  1  Rob.  Adm.  Rep.  135. 
ring   v.    Clagett,  3  Bos.   &    Pull.  215.  Donaldson    v.     Thompson,    1     Campb. 

429. 


(o)  See  Note  629,  p.  884.   (p)  See  Note  630,  p.  885.    (q)  See  Note  631,  p.  885 
(f )  See  Note  632,-p.  836. 


550 


Of  Sentences  in  Courts  df  Admirahy,        [Ch.  5. 


In  civil  casci.  ijjgt  country  would  be  conclusive  in  any  of  our  courts  on  ilie 
validity  of  the  marriage.  (1)  (s)  So,  where  a  party  having  accep'- 
ed  a  bill  of  exchange  drawn  uj)on  him  at  Leghorn,  instiiuled  a  suit 
ihere,  in  which  suit  his  acceptance  was  vacated,  and,  upon  his 
return  to  this  country,  being  sued  again  on  his  acceptance,  applied 
to  the  Court  of  Chancery  for  an  injunction  and  relief  against  the 
second  action,  Lord  Chancellor  \  ing  decided,  that  the  cause  was 
to  be  determined  by  the  law  of  the  country  where  the  bill  was  ne- 
gotiated; and,  as  the  acceptance  had  been  there  declared  void  by 
a  competent  jirisdiction,  he    thought    the  sentence    must  here  zho 

In  crimir.al.  be  conclusive.  (2)  So,  on  a  criminal  charge,  (as,  for  murder  com- 
mitted in  a  foreign  counlry,)  an  acquittal  in  that  country  miglit  be 
pleaded  here  in  bar  to  an  indictment  for  the  same  cflence;  (3)  (/) 
because,  says  Mr.  Justice  Buller,  a  final  determination  in  a  court  of 
competent  jurisdiction  is  conclusive  in  all  courts  of  concurrent 
jurisdiction.  (4)  (m)  From  the  two  last  cases  the  following  jirin- 
ciple  seems  to  be  properly  deducible,  namely,  that  a  pai'ty,  who  has 
been  once  discharged  from  a  criminal  charge,  or  from  a  legal  de- 
mand, by  the  sentence  of  a  foreign  court  o(  competent  jurisdiction 
may  protect  himself  by  that  sentence  against  any  fresh  suit  or 
prosecution,  instituted  here  for  the  same  cause. 


Action  on 
foreign  juc 
tnent. 


Judgment 
prim.  fac. 
denca. 


If  an  action  is  brought  in  this  country,  as  an  action  of  ('ebt 
or  assumpsit,  directly  upon  a  foreign  judgment,  the  sentence  has 
been  considered  prima  facie  evidence  of  the  debt,  but  not  con- 
clusive. Li  the  case  of  Sinclair  v.  Frascr,  (5)  v.hicli  was  an 
action  in  the  Court  of  Session  in  Scotland,  on  a  judgment  (;f 
the  supreme  court  in  Jamaica,  tiie  Court  of  Session  rufused  to 
give  any  effect  to  the  foreign  judgment,  and  held,  that  the 
plaintiff  was  bound  to  prove  the  ground,  the  nature,  and  the 
extent  of  his  demar.d,  on  which  the  judgment  in  Jai^aica  had 
been  obtained.  But  the  House  of  Lords,  on  an  appeal,  reversed 
'  the  decision  of  the  Court  of  Session,  pronouncing  the  follouing 
special    order  of   reversal:   •'  It  is  declared,  that    ihe  judgment  C)f 

(1)  By    Ld-    Hardwicke,    in     Ro;ich  (3)   Hirdiinson's  case,  cited  I    Sho\T. 
V.  Garvan,  I  Ves.    159.  Hep.  6;  also  in  2  Str.  733. 

(2)  Buirov's  V.    Jemino,  2    Str.    733.  (4)   Bull.  iN.    P.    215     Roclie's    case, 
S.  C.    1    Dickens,     48.     See    Plumoner  1  Leacli  Cr-  C.    160. 

V.  VVoodburne,  4  Barn- &,  Cress.  625.  (5)   1  Doug.    5,  in    no(e.     20     iio\>.-- 

eil's  St.  Tr.  4b!fi. 


(»)  See  Note  633,  p-  888-     {t)  See  Note  634,  p.  S90.     («)    See  Note  635,  p.  S90. 


Sect.  !2.]  ancl  in  Foreign  Covrfs. 

the  supreme  court  of  Jamaica  ought  to  he  received  as  evidence, 
prima  facie,  of  the  debt,  and  that  it  lies  upon  the  defendant  to 
impeach  the  justice  thereof,  or  to  show  the  same  to  have  been 
irregularly  or  unduly  obtained." 

In  the  case  of  Walker  v.  Witter,  (1)  where  the  question  was, 
whether  the  plaintiff  in  an  action  or  a  judgnient,  obtained  by  him 
in  the  supreme  court  of  Jamaica,  ought  in  jileading  to  show  the 
ground  of  the  judgment,  the  Court  of  King's  Bench  determined 
that  this  was  not  necessary;  that  foreign  judgments  are  a  ground 
of  action  in  this  country,  but  that  they  are  examinable,  when  made 
the  subject  of  a  suit. 

Lord  Kenyon,  indeed,  in  the  case  of  Galbraiih  v.  Neville,  (2) 
which  was  an  action  of  debt  on  a  judgment  in  the  supreme  court 
of  Jamaica,  said,  he  entertained  serious  doubts  concerning  the 
doctrine  laid  down  in  the  case  of  Walker  v.  Witter,  (3)  that 
foreign  judgments  are  not  binding  upon  the  parties  here;  and 
after  referring  to  a  case,  which  might  seem  to  point  against  his 
opiiiicn,  he  adJed,  "  that  is  not  an  authority  for  saying,  that  we 
ran  revise  tlie  judgnients  of  the  lowest  courts  in  foreign  coun- 
tries, where  they  have  competent  jurisdiction."  However,  Mr. 
Justice  Euller  in  the  same  c;.se,  said,  "  The  doctrine  which  was 
laid  down  in  ilie  case  of  Sinclair  v.  Fraser  has  always  been  con- 
sidered the  tiue  line  ever  since,  namely,  that  the  foreign  judg- 
jiiMit  bliali  be  prima  facie  evidence  of  the  debt,  and  conclusive, 
1. 11  it  be  impeached  by  the  other  parly." — "  As  to  actions  of 
this  sort,"  he  continued,  '•'■  see  how  far  the  Court  would  go,  if 
what  was  said  in  the  case  of  Walker  v.  Witter  were  departed 
from.  It  was  there  held,  that  the  foreign  judgment  was  only 
taken  to  be  prima  fac^e  evidence,  that  is,  we  will  allow  the  same 
force  to  a  foreign  judgment,  that  we  do  to  those  of  our  own  courts 
not  cf  record:  (1)  but  if  the  matter  were  carried  farther,  we 
should  give  them  more  credit;  we  bhould  give  them  equal  force 
with  those  of  courts  of  record  here.  Now  a  foreign  judgment 
has  never  been  considered   as  a  record:  it  cannot   be   declared  on 


(1)    1    Doug.  1.     In  ihc  case  of  Her-  (2)  1    Doug.  Rep.  5,    n.  (2);  and    6 

l.ert  V.    Cook,  also  Willes,    .37,  in    note.  East,  475,  n.  (6)  S.  C. 

Lord    Mansfield  declared,  itint    a  foreign  (3)    1  Doug.  5,  note  J. 

judgnnent  is  not  conclusive  evidence  of  a  (4)  Ace.  Ld.  Mansfield  in  Herbert  ▼. 

debt.  Cook,  Willes,  Rep.  37,  n.  (a.) 


conclusive. 


362  Of  Sentences  in  Courts  of  Admiralty,       [Ch.  3. 

as  such,  and  a  plea  of  nul  tiel  record  in  such  a  case  is  a  nnere 
nullity.  How  then  can  it  have  the  same  obligatory  force?  In 
short,  the  result  is  this;  that  it  is  prima  facie  evidence  of  the 
justice  of  the  demand  in  an  action  of  assumpsit,  having  no  more 
credit  than  is  given  to  every  species  of  written  agreements,  name- 
ly, that  it  shall  be  considered  as  good  till  it  is  impeached." 

Judgment  not  In  the  case  of  Philips  v.  Hunter,  (I)  Eyre,  C.  J.,  said,  "  It  is 
in  one  way  only,  that  the  sentence  or  judgment  of  the  court  of  a 
foreign  state  is  examinable  in  our  courts,  and  that  is,  when  the 
party  who  claims  the  benefit  of  it  applies  to  our  courts  to  enforce 
it.  When  it  is  thus  voluntarily  submitted  to  our  jurisdiction,  we 
treat  it  not  as  obligatory  to  the  extent,  to  which  it  would  be  obli- 
gatory perhaps  in  the  country  in  which  it  was  pronounced,  nor 
as  obligatory  to  the  extent  to  which  by  our  law  sentences  and 
judgments  are  obligatory,  not  as  conclusive,  but  as  matter  in  pais, 
as  a  consideration  prima  facie  sufficient  to  raise  a  promise.  We 
examine  it,  as  we  do  all  other  considerations  of  promises,  and 
for  that  purpose  we  receive  evidence  of  what  the  law  of  the 
foreign  state  is,  and  whether  the  judgment  is  warranted  by  the 
law." 

For  certain  purposes,  indeed,  the  judgments  of  foreign  courts, 
even  courts  of  municipal  law,  will  be  conclusive,  according  to 
their  subject-matter;  (2)  but  where  such  judgments  are  put  in 
suit,  and  made  the  subject  of  an  action  in  this  country,  the 
better  opinion  seems  to  be,  that  they  are  only  prima  facie 
evidence  of  a  debt,  and  have  the  force  of  a  simple  contract 
between  the  parties.  Even  in  the  case  of  judgments  of  foreign 
courts  of  admiralty,  which  are  constituted  on  the  universal  law 
of  nations,  judges  of  great  authority  have  doubted,  whether  it 
is  not  from  an  over-strained  amity,  that  they  have  been  allowed 
to  be  conclusive.  (3)  And,  perhaps,  on  considering  the  con- 
stitution and  the  conduct  of  some  municipal  courts  in  some 
foreign  countries,  it  may  be  deemed  amply  sufficient,  in  the 
way  of  respect  and  courtesy,  to  give  their  judgments  the  credit 

(1)  2  H.  Black.  410,  in  error.  (3)  See  particularly  Fisher  v.  Ogle,  2 

(2)  See  Burrows  v.   Jemino,  ante,  p.     Park,  Ins.  552. 
350.  Tarleton   v.   Tarleton,  infra,   p. 
354. 


Srct.  2.]  and  in  Furn^ii  Courts.  353 

of  prima  facie  evidence,  and  not  lo  allow  ilieni  more.  It  is  not 
unimportant,  also,  to  observe,  that  this  is  precisely  the  degree  of 
credit,  uliicli  the  judgments  of  our  courts  of  justice  receive  in 
some  foreign  courts;  they  arc  treated  as  prima  facie  evidence  of  a 
debt,  but  not  conclusive.  (I)  (f) 

VVlien  it  is  said,  that  a  foreign  judgment  is  evidence  of  a  debt,  Foreign  judg- 
the  rule  must  obviously  be  understood  with  this  limitation,  'hat  ^^jj  ' 
nothing  appears  in  the  record  of  the  proceedings,  on  which  the 
judgment  is  founded,  contrary  to  reason  and  justice.  If  the 
judgment,  for  example,  should  have  passed  against  a  defendant, 
who  does  not  appear  to  have  been  served  with  process,  or  to  have 
had  any  opportunity  of  defending  the  action,  such  a  judgment 
would  not  be  enforced  by  courts  of  justice  in  this  country.  This 
point  occurred  in  the  case  of  Buchanan  v.  Rucker,  (2)  where  it 
appeared  from  the  proceedings,  that  the  sumujons  had  been  served 
by  nailing  up  a  copy  of  the  declnration  on  the  door  of  the  court- 
house; and  it  was  adjudged,  that  although  such  might  be  the 
practice  abroad,  it  was  a  practice  inconsistent  with  all  principles  of 
justice,  and  that  the  judgment  therefore  could  r,ot  be  made  the 
ground  of  an  action  of  assumpsit,  ii  will  be  necessary,  therefore, 
to  prove  that  the  party  was  duly  summoned,  or,  if  he  is  described 
in  the  proceedings  as  an  absentee,  that  he  had  absented  himself 
from  the  country.  (3)  (w)  Wiih  respect  to  the  proof  of  his  ab- 
sence, that  fact  might  perhaps  be  inferred  from  a  return  o(  non  est 
inventus  to  the  process  issued  against  him,  if  it  be  proved  ihot  he 
had  been  in  the  country.  (4)  (.i) 

Although   the   foreign  judgment  is   only  prima  facie  evidence  Effect  of  For- 

r         1    I        r  I'll  •         I  I  •        •  i'  r  ^ign  judgment 

01  a  debt,  lor  whicli   the  suit   abroad  w;is  msiittited,  yet  lor  many  ng  evidence 
purposes   it  will  be  conclusive   between  the  [parties,    according  to 
the  nature  of  the  subject   matter,  and   the  purposes   to  which   the 
evidence  is  applied.      Thus,  where  a  covenant  had  been  made  by 
the  defendant,   lo  indemnify   the   |)lHinlilT  from    ;i!l  debts   due  from 

(1)  Such    is    the    luw  of  the    United  (2)    !  Cainpb.  63.  9  Ftist,  J92,  S.  C. 

States    of    Anieric'i.        The      decisions  (3)     Duiiianan    v.     UuciiPr,  9     F.iist, 

upon  this    point,    cited    in  an    American  192.     Cav;in  v.  St(nv;ir(,   I    Starlc.  N.  P. 

edition  of  an    l^nglish  Treatise    on    Evi-  C.  525 

dence,    are    the  following;    Buttrick    v.  (4)   By  Lord    Eiienl)orough,  Cnvan  v. 

Allen,  8  Mass.  Rep.  273.     9  Mass.  Rep.  Stewart, "l  Stark.  N.  P.  C.  525. 
464.     3  Johns   Rep.  169. 


(f)  See  Note  891,  p.  891.     (w)  See  Note  903,  p.  903.     (.r)  See  Note  63S,  p.  915. 

Vol.  I.  45 


564  Of  Judgments  in  rem  in  Exchequer,        [Cli.  3. 

a  Inte  pariiiersliip,  subsisting  between  tlie  plaintiff,  the  defendant, 
and  a  third  |>erson,  and  iVoni  all  siiits  on  account  of  non-payment, 
proof  on  tiie  [)arl  of  the  plaintiff",  that  proceedings  bad  been  insti- 
tuted in  a  foreign  court  against  the  late  partners,  for  the  recovery 
of  a  partnership  debt,  and  that  a  decree  |)assed  against  them  for 
want  of  an  answer  (in  consequence  of  which  a  sequestration 
issued  against  the  estate  of  the  phiiniif}',  and  lie  was  obliged  to 
pay  the.  debt,)  is  conclusive  evidence,  in  an  action  on  the  covenant 
osainst  the  defendant,  who  was  a  pariy  to  ilie  foreign  suit,  and 
who,  having  notice,  ought  to  have  appeareil  and  n)ade  his  defence; 
and  the  defendant  is  not  at  liberty  to  show,  that  the  proceeding.* 
are  erroneous,  (1) 

Sect.  HI. 

0/  Judgments  in  rem  in  the  Exchequer,  by  Commissioners  of  Ex' 
cise  and  by  Colleges  in  ihe  Universities. 

Jud«:meni  of         ^  JUDGMENT   of  Condemnation    in    the   Court   of  Exchequer, 

condemniilion        ,  ...  ,,..,.  ,      . 

in  the  Exche-    where    proceedmgs   in  rem    have    been    mstituted,    is    conclusive 
^"*''-  evidence  in  any   other  court,   as  to  all   the   world,    that  the   goods 

were  liable  to  be  seized.  (2)  The  jurisdiction  of  the  Court  of  Ex- 
chequer in  this  case  is  not  only  competent,  but  sole  and  exclusive; 
and  though  no  formal  or  express  notice  is  given  to  the  owner  of 
the  goods  in  person,  jet  he  has  sufficient  notice  to  try  the  point  of 
forfeiture,  by  the  seizure  of  his  projierty,  by  the  proclamations  ac- 
cording to  the  course  of  the  court,  and  by  the  writ  of  appraisement. 

A  record  of  condemnation,  for  adulterating  spirits,  is  evidence 
between  other  parties;  hut  a  record  of  conviction  for  penalties, 
which  is  a  proceeding  in  personam,  not  in  rem,  is  of  a  different 
nature,  and  subject  to  the  same  rules  as  other  judicial  pro- 
ceedings. In  an  action,  therefore,  for  th?  piice  of  s|)ii!ts,  where 
the  defence  was,  that  the  ."=;piriis  had  been  adulterated,  such  re- 
cord of  conviction  has  been  held  not  to  be  admissible  as  pro()f  of 
the  adulteration.  (3)      The  Court  of    Exchecjner   decided,  in    the 

(I)  Tyrlpton  v.  Tarleton,  4  Maule  &  %•.  ApuillHr.    7  T.    R.  6.%.    Bull.    N.  P. 

Seivv.  21    Mo!ony  v  GiliLons,  2  Can  [itj.  244    fee  nlto  i!ic  ciises  cited  in  5  Price, 

602.  :02 

(2)  Scoit  V.  f  Iie.-irri.an,  2  Black.  Rep.  (.T)   Unit  v.  M'Naniara,  4  Price,  154, 

979,     By  L/1.  Keuyon,    C  J.,  in    Geyer  iu  i;oie,  by  Git^bs,  Cb  J. 


Sect.  ?).]   and  bij  Commissioners  of  Excise,  ^-c.  355 

case  of  the  Attorney-general  v.  King;,  (1)  that  a  record  of  con- 
detnnation  of  goods,  proceeding  from  one  act  of  |iarliament,  is 
not  evidence  with  respect  to  th.e  commission  of  an  offence  cliarged 
under  another  act.  And  Mr.  Baron  Wood  held,  (2)  in  the  same 
case,  ihat  l!ie  record,  if  admissible  at  all,  could  not  be  admitted  as 
proof  of  any  immaterial  allegation,  uhicli  might  be  contained  ia 
the  record.  (3) 

It  appears   also  to   have   been  decided   in  several   cases,  that  a  Condemnation 
jiidgment     o\     condemnation   by   commissioners    ot    excise,    in   ^  s'umtira  o{  ex- 
inatter   exclusively  within   their  jurisdiction,  is   conclusive,  on  the  *^'*®- 
right   of   seizure    coming    into   question    in    any   other   court;  (4) 
although,  in   one  instance,  the   Court  of  Common    Pleas   were  of 
opinion  that   the  judgment   would  not   have  such  a  binding  effect, 
on   the   ground   that     the    commissioners   of   excise   were   not   a 
court   of   record.  (5)      But,    it  is   to  be  remembered,   the  general 
principle  Established   in   the   Duchess   of   Kington's   case   is   not 
confined  to  the  judgments  of  courts  of  record,  some  of  which  are 
of  a  very  inferior  description,  but  extends  equally  to  every  court  of 
competent   or  exclusive  jurisdiction;  and  die  examples  cited   by 
C.  J.  De  Grey,  in  illustration  of  this  principle,  are  all  drawn  from 
the  proceedings  in  ecclesiastical  courts,  none  of  which  are  classed 
among  courts  of  record. 

An  acquittal  in  the  Exchequer  was  considered  by  Lord  Acquittal. 
Kenyon,  in  the  case  of  Cooke  v.  Sholl,  (6)  to  be  conclusive 
evidence  of  the  illegalily  of  the  seizure.  That  was  an  action 
of  trover  for  several  pipe?  of  wine  seized  by  the  defendant  for 
want  of  a  permit.  At  the  trial  of  the  cause,  the  plaintiff  gave  in 
evidence  a  record  of  acquittal  in  the  Court  of  Exchequer.  The 
defendant  then  insisted,  that,  under  the  circumstances  of  this 
case,  the  permit  had  expired  before  the  seizure  was  tnade;  and 
Mr.  Justice  Heath,  who  tried  tlie  cause,  was  of  that  opinion: 
but   on   its   being  suggested,    that    there  had    been   a  different    de- 

(1)5  Price,  196.  (5)  H<nshaw  v.   Pleasance,  2  Black. 

(2)  5  Price.  211.  Rep.  1174. 

(3)  See  ante,  c.  2,  s    1  (6)5  T.    R.    203,  and   aee   a  c.tse  in 

(4)  Terry      v.      Huntington,  Hard.      12    Vin     Ab.    (A.    b.    32,  pi.    l.beforo 
490.      Fuller    v.    Fotch,    Carlh.  346.     Price  B.  ncc  ) 

Roberts   v.    Fortune,    before    Lee,    Ch. 
J.,  1462.  4  Harg.    Law  Tracts,  46S,  n. 


i'o6  Of  Judgments  in  rem  in  E.vchequer,     [Cli.   3. 

termination  in  iho  Court  of  Exchequer,  ho  reserved  the  point 
lor  the  opinion  of  the  Court  of  Kii);^'s  Bench,  with  liberty  to 
enter  a  verdict  for  the  defendant,  if  it  should  be  adjudged  for 
him.  When  the  cas-j  came  before  the  Court,  Lord  Kenyon 
thought  the  record  of  acquittal  precluded  all  reasoning  on  the 
construction  of  the  p  rmii;  but  as  the  question  respecting  the 
judgment  of  acquittal  was  not  iipon  the  record,  and  I  he  only 
question  was  on  tlie  coiisiruciioii  of  the  permit,  a  verdict  was 
entered  for  tlie  defendant.  This  case,  therefore,  has  not  de- 
termined, that  an  acquittal  in  the  KKchequer  would  be  con- 
clusive evidence  of  the  illegality  of  a  seizure,  although  certainly 
that  appears  to  have  been  the  opinion  of  Lord  Kenyon.  It 
may  be  observed,  that  an  acquittal  does  not,  like  a  conviction, 
ascertain  any  precise  fact.  The  sentence  might  Iiave  proceeded 
on  the  ground,  that  sufficient  evidence  was  not  produced,  on 
the  part  of  the  crown,  to  warrant  the  seizure;  and  though 
the  sentence  may  be  conclusive  as  against  the  crown,"  it  seems 
reasonable,  that  it  should  not  have  such  a  conclusive  operation, 
in  an  action  for  seizing  the  properly,  against  a  third  person, 
who  was  not  a  party  with  the  crown  in  the  original  proceedings, 
and  had  no  notice  or  opportunity  for  supporting  the  condem- 
nation. 

The  principle  which  has  been  before  laid  down  as  applicable 
to  the  sentences  of  courts  of  justice,  seems  to  apply  equally  to 
the  judicial  proceedings  of  other  tribunals,  which  are  invested 
Sentence  of  with  an  exclusive  or  peculiar  jurisdiction.  A  sentence  of  de- 
coUe'^e^^'*'"  ^  privation  or  expulsion  of  one  of  the  members  of  a  college,  by 
the  master  and  fellows,  or  by  the  visitor  on  an  appeal,  upon  a 
subject  within  their  jurisdiction,  is  conclusive  in  courts  of  law; 
and  the  justice  of  their  decision  cannot  be  questioned  even  in 
the  King's  Bench,  though  it  belongs  to  that  court  to  control 
them,  if  they  exceed  the  bounds  of  their  jurisdiction.  On  this 
)>rinciplc,  a  mandamus,  to  restore  the  fellow  of  a  college,  has 
been  frequently  refused.  (1)  In  ilie  case  of  Philips  v.  Bury,  it 
was  decided,  nn  an  appeal  to  the  House  of  Lords,  that  a  sen- 
tence of  deprivation,  by  the  visitor  of  a  college,  acting  within  the 
limits   of  his    visatorial  jurisdiction,    was   conclusive   evidence  in 

(I)  Dr.  Widiiiigton'd  case,  1  Lev.  23.     Dr.  Patrick's  case,  1  Lev.  65. 
C;i3e  of  New  College,  2  Lev.  14. 


Sect.  3.]         and  by  Commissioners  of  Excise y  ^c.  357 

an  action  of  ejectment  for  one  of  the  college  estates;  and  the 
judgment  of  the  Court  of  King's  Bench,  which  had  been  given  on 
the  opinions  of  three  Judges  against  the  opinion  of  Lord  Holt, 
was  reversed.  (1)  And  in  the  last  case  on  this  subject,  which  was 
a  prosecution  for  an  assault  in  turning  out  of  a  college  one  who  had 
been  expelled,  the  Court  of  King's  Bench  determined,  that 
evidence,  impeaching  the  sentence  of  expulsion,  had  been  properly 
rejected  at  the  trial.  (2) 

It  is  a  general  rule,  with  respect  to  special  and  limited  juris-  Sentence  by 
dictions,  that  where  a  person  acts  as  judge,  (that  is,  where  he  has  c°uj,t^'^"' 
over  the  subject-matter  a  general  jurisdiction,  which  he  has  not 
exceeded)  he  will  not  be  liable  to  have  his  judgment  examined  In 
an  action  brought  against  him.  (3)  Thus,  if  an  ecclesiastical 
judge  proceed  to  excommunicate  in  a  cause,  in  which  he  has  juris- 
diction over  the  subject-matter,  he  will  not  be  liable  to  an  action, 
although  he  proceed  to  excommunicate  erroneously;  but  if  he  ex- 
communicates in  a  matter,  in  which  he  has  no  jurisdiction,  he  will 
be  liable  to  an  action.  (4)  And  where  a  statute  provides,  that  the 
judgment  of  commissioners,  appointed  by  the  act,  shall  be  final, 
their  decision  is  conclusive,  and  cannot  be  questioned  in  any  col- 
lateral proceeding.  It  has  therefore  been  held,  that  a  certificate 
from  commissioners  for  settling  the  debts  of  the  army,  stating  that 
so  much  was  due  from  the  defendant  (an  army-agent)  to  the 
plaintiff  (an  officer,)  was  conclusive  in  an  action  brought  to 
recover  the  money;  and  that  no  evidence  could  be  received  to 
show,  that  the  commissioners  had  formed  a  wrong  judgment.  (5) 

(1)  Philips  V.  Bury,  Skin.  447.  (4)  Ackerley  v.  Parkinson  and 
1  Ld.  Raym.  5,   S.    C.     2  T.  R.    346,     Mawdesley,   3  Maule  &   Selw.    411. 

S.  C.  (5)  Moody  V.   Thurston,  1  Str.    481, 

(2)  R.  V.  Grundon,  Cowp.  315.  ruled  by  Pratt,   C.    J.;  and  a  new  trial 

(3)  Marshalsea  case,  10  Rep.  76.  afterwards  refused  by  the  whole 
Dr.  Groenvelt  v-  Dr.  Burwell,  1  Ld.  Court.  See  also  Lane  v.  Hegberg, 
Raym.  454,  467;  1  Salk.  396,  S.  C.  Bull.  N.  P.  19;  Earl  of  Radnor  v. 
Miller  v.   Scare,  2   Black.    Rep.    1145.  Reeve,  2  Bos.    &  Pull.     391.     Brown 

Moses  V.  Macferlan,   2   Burr.     1006.         v.  BuUen,  1  Doug.  407. 


358  Of  Proceedings  in  Chancery.  [Cli.  4. 

CHAP.    IV. 

Of  certain  other  Judicial  Proceedings. 

We  proceed  now  to  treat  of  the  admissibiliiy  of  certain  other 
judicial  proceedings;  and  in  the  present  chapter,  it  is  proposed  to 
consider,  first,  the  admissibihty  of  proceedings  in  Chancery;  sec- 
ondly, the  adinissibil  ty  of  depositions  on  interrogaiories,  or  depo- 
sitions taken  before  justices  of  the  peace  and  coroners,  of  inquisi- 
tions taken  by  coroners,  of  certain  other  inquisitions,  of  depositions 
and  judgments  in  inferior  courts,  of  awards,  and  of  certificates. 

Sect.  I. 

Of  Proceedings  in  Chancery. 

Decree.  A  DECREE  in  the  Court  of  Chancery  may  be  given  in  evidence 

on  the  same  footing,  and  under  the  same  limitations,  as  the  verdict 
or  judgment  of  a  court  of  common  law.  (1)  (y) 

Bill.  The  common  opinion  used  to  he,  that  a  bill  in  Chancery,  which 

had  been  followed  up  by  other  proceedings,  was  admissible  in  evi- 
dence against  the  complainant,  as  an  admission  of  facts.  (1) 
*'  The  allegations  in  the  bill,  it  was  said,  must  be  siqiposed  to  be 
true:  nor  is  it  to  be  presumed,  that  the  bill  was  preferred  by  a 
counsel  or  solicitor,  without  the  privity  of  the  parly  himself."  (2) 
However,  it  is  notorious,  that  many  of  the  facts  stated  in  the  bill 
are  the  mere  suggestions  of  counsel,  made  for  the  |)urpose  of  ex- 
torting money  from  the  defendant.  The  general  rule  therefore  is, 
that  a  bill  in  Chancery  will  not  he  evidence,  except  lo  show,  that 
such  a  bill  did  exist,  and  that  certain  facts  were  in  issue  between 
the  parties,  in  order  to  introduce  the  answer  or  the  depositions  of 
witnesses:  (3)  it  is  not  to  be  admitted  as  evidence,  in  courts  of  law, 
to  prove  any  facts  either  alleged  or  denied  in  the  bill.  (4)  (z) 

(1)  See  ante,  c.  2,  8.  1.  196.     Bull.    N.    P.  235.     Bowerman  v. 

(2)  Snow    V.    rhillips,    i    Sid-    221.  Sjbourn,  7  T.  R.  3.     1  VVighlw.  32.5. 
Gilb.    Ev-   42.     Wollet   v.    Roberts,    1  (4)  Banbury    peerage   case,  reported 
Chan.  Cas.  64,  contra.  from  MS.  in  2  Selw.  N.  P.  685. 

(3)  Lord  Ferrers  v.  Shirley,  Filzgib. 

(y)  See  Note  639,  p.  915.     (z)  See  Note  640,  p.  923. 


Sect.  1.]         Of  Proceedings  in  Chancery.  359 

Lord  Kenyon,  indeed,  is  reported  to  have  admitted  a  bill  in  Aniwer. 
Chancery,  filed  by  an  ancestor,  to  be  evidence  of  a  |)edigree  there 
stated,  as  a  declaration  in  the  family.  (1)  But  it  was  resolved  by 
the  Judges  in  the  Hanbnry  peeragfe  case,  on  a  question  put  to  them 
by  the  House  of  Lords,  that  a  bill  in  equity,  or  depositions,  cannot 
be  received  in  evidence  in  the  courts  below,  on  the  trial  of  an 
action  of  ejectment,  against  a  [)arly  not  claiming  or  deriving  in 
any  manner  under  the  plainlifF  or  defendant  in  the  Chancery  suit, 
either  as  evidence  of  the  facts  therein  deposed  to,  or  as  declara- 
tions respecting  pedigree.  (2)  And  even  if  the'  bill  or  depositions 
could  be  received,  some  extrinsic  [)roof  must  be  given  of  the  rela- 
tionship between  the  complainant  and  the  party  whose  pedigree  is 
disputed.  It  would  not  be  sufficient,  that  the  bill  purports  to 
have  been  fdedby  a  relation.  In  the  Banbury  peerage  case,  before 
mentioned,  where  C.  D.'s  legitimacy  was  in  question,  the  com- 
plainant oflered  in  evidence  a  bill  filed  in  C.  D  's  name  by  E.  F. 
his  uncle  and  next  friend,  dialing  his  legitimacy,  but  there  was  no 
proof  that  E.  F.  was  his  uncle:  the  Judges,  being  referred  to  for 
their  opinion,  were  uiianimous,  that  extrinsif  proof  of  the  relation- 
ship was  essential,  and  the  bill,  which  was  above  150  years  old, 
was  accordingly  rejected.  (3) 

Answers  in  Chancery  (a)  are  confessions  on  oath,  and  therefore  Answer. 
strong  evidence  against  the  party  who  makes  ihem.  (6)  When  an 
answer  is  read,  all  the  [)arts  must  be  taken  together,  connected, 
and  entire.  If  only  a  part  is  read  in  evidence,  the  other  party  is 
entitled  to  have  the  whole  read;  (4)  (c)  and  if,  on  exceptions  being 
taken,  a  second  answer  is  put  in,  the  defendant  may  insist  upon  Whole  to  ba 
having  that  also  read,  to  explain  what  he  swore  in  his  first  an- 
swer. (5)  ((/)  This  is  the  general  rule,  when  an  answer  of  either 
party  to  the  suit  is  given  in  evidence  against  him,  to  prove  a 
point  in  issue.  But  if  an  answer  is  produced,  merely  for  the 
j)urpose  of  showing  the  incompetency  of  a  witness,  who  has  in 
bis  answer  admitted   himself  interested   in  the   event  of  the  cause, 

(1)  Tiiylor  V.    Cole,    sitt.    after  Hil.         (4)  By  Holt,  C.  J  ,  Lvnch  v.  Clarke, 
tfinii,  179f),  7  T   R   3,  n.  3  Salk.  153.     Earl    of  Bulh    v.    BaUer- 

(2)  2   Selw.    N.    P.    CS5.     See  also     sea,  5  Mod.  9. 

BerUcley  peerage    case,    supra,    p.  2-13,  (5)   R.  v.  Carr,  I  Sid.  41S.     Bull.  N. 

nnd  Freeman  v.  Phillipps,  supra,  p.  246.     P.  237. 

(3)  See  Note  (4)  ante,  p.  358- 

(a)  See  Note  641,  p.  924.     (6)  See  Note  6  i 2,  p.  926.     (c)   See  Note  643,  p.  926. 
(</)  See  Note  644,  p  923. 


560  Of  Proceedings  in  Chancery.  [Cli.  4. 

Answer.  that  part  only  is  to  be  read  wliich  states  the  ground  of  interesl;(l) 

for  if  the  witness  is  incompetent,  liis  evidence  ought  not  to  be 
received  in  any  form;  on  the  other  hand,  if  he  is  competent,  he 
ought  to  be  examined  viva  voce  in  open  court. 

When  you  read  the  answer  of  a  party,  says  Ch.  B.  Gilbert, 
the  confession  must  be  all  taken  together:  you  shall  not  take 
only  what  makes  against  him,  and  leave  out  what  makes  for  him; 
for  the  answer  is  read  as  the  sense  of  the  party.  (2)  But  although 
the  defendant  may  regularly  insist  on  having  the  whole  of  the 
answer  read,  that  by  comparing  the  several  parts  with  each  other, 
the  true  meaning  and  extent  of  the  admissions  may  be  more  clearly 
understood,  it  will  not  therefore  follow,  that  all  the  parts  of  his  state- 
ments are  equally  credible,  or  that  every  thing,  which  he  asserts, 
is  to  be  admitted   as  strictly  proved.     If,  for  example,  he  states  a 

Hearsay  state-  fact,  not  from  his  own  knowledge,  but  on  mere  report,  that  would 
ment  in  an-  ^  ■,  .,  ...»  ,  i         ^        \     •  ii 

swer.  '^ot  be  evidence  in  his  lavour;  as,  on  the  other  hand,  it  would  not 

be  evidence  against  him,  in  case  he  had  acknowledged  the  report 
to  be  different.  The  objection  is,  not  that  he  speaks  in  his  own 
behalf,  (for  that  difficulty  is  waived  by  the  other  party,  who  offers 
the  answer  in  evidence,)  but  that  he  speaks  from  hearsay,  (e)  and 
has  not  the  means  of  knowledge,  which  alone  can  be  resorted  to. 
In  the  case  of  Roe  on  demise  of  Pellalt  and  others  against  Fer- 
rars,  (3)  where  the  defendant  gave  in  evidence  an  answer  by  the 
lessors  of  the  plaintiff,  Mr.  Justice  Chambre,  observing  upon  the 
degree  of  positive  proof  which  the  lessors  of  the  plaintiff  had  drawn 
from  the  answer  in  their  own  favour,  expressed  himself  thus: — "  It 
is  true,  that  the  answer  was  introduced  into  the  cause  by  the  de- 
fendant, on  whose  behalf  some  parts  of  it  were  read.  But  in 
those  parts,  on  which  the  lessors  of  the  plaintiff  relied,  they  speak 
only  to  what  'they  have  heard  as  truth.'  I  think  that  was  not  ad- 
missible evidence,  for  it  appears  to  me,  that  where  one  party  reads 
a  part  of  the  answer  of  the  other  party  in  evidence,  he  makes  the 
whole  admissible  only  so  far  as  to  waive  any  objection  to  the  compe- 
tency of  the  testimony  of  the  party  making  the  answer.  (/)  and  that 
he  does  not   thereby  admit  as   evidence  all   the  facts,  which  may 

(1)  Sparin     v.    Drax,    trial    at   bar,         (3)  2    Bos.  &    Pull.    542,548.     See 
Bull.  N.  P.  238.  also  the   remark    of  Lord   Mansfield,  in 

(2)  Gilb  Ev.  44.  Bermon  v.  Woodbridge,  2  Doug.  788. 


(e)  See  Note  645,  p.  928.     (/)  See  Note  646,  p.  928. 


Sect,  l.j  Of  Proceedings  in  Chancery.  561 

happen  to  have  been  stated  by  way  of  hearsay  only,  in  the  course  Answer, 
of  the  answer  to  a  bill  filed  for  discovery.      This  point,"  he  added, 
"  does  indeed  appear  to  have  been  contested  at  the  trial.     Had  it 
been  contested,  I  should  have  thought  the  court  bound  to  send  (be 
case  down  for  a  new  trial."  {g) 

An  answer  to  a  bill  filed    in  the  Court  of  Exchequer,   in  a  suii  Evidence 

,».,,,  .  .  ,  •       ,        ,  against  privy, 

instituted  lor   titne-hay   by  a   vicar  against  the   rector  and   others 

(owners  of  lands  in   the  parish),  in   which  answer  the   defendants 

disputed  the  vicar's  claim,  and  declared  that  the  tithes  in  question 

belonged  to  the  rector,  will  be  evidence,  in  an  action  for  tithes  by 

a  succeeding  rector  against  owners  or  occupiers  of  the  same  lands, 

for  the  tithes  of  which  the  former  suit  was  instituted.  (1)      "  I'his 

appears  to  me,"  said  Lord  Ellenborough,  not  to  be  res  inter  alios 

acta,  but,  inter  eosdem  acta;  and  was  not  only  evidence,  but  strong 

evidence,  against  the   defendant,  who  stood   in  the  same  place,  by 

derivation  of  title  and  by  legal  obligation,  as  the  former  occupier  of 

the  same  land;  and   that  former  owner,    upon  his  oath,  in   a  suit 

against  him  by  the  vicar.  Las  declared  that  the  tithe  is  due  to  the 

rector,  and  not  to  the  vicar;  and  now   that  sauie  person,  in  ejject, 

(that  is,  the  present  owner,  who   purchased  of  the  former  owner 

the  very  lands,  over  which  tithes  were  now  claimed,)  is  deraigning 

the  title  of  the  rector  in  favour  of  the  vicar."  (h) 

In  the  case  last  cited,  the  answer  was  adjudged]to  be  admissible  Examined 
in  evidence,   although  it   did  not  appear  that  there  had    been  any  g^^'^  °   ""' 
decree  made  in  the  suit;  and  proof  of  an  examined  copy  was  suffi- 
cient proof  of  the  answer.  (2)      "  I  know  of  no  case,"  said  Lord 
Ellenborough,  "  where,  in  a  mere  civil  proceeding,  it  is  held  neccs 
sary  to  have   the   actual  answer  signed  by  the   party,  in   order  to 
read   it   against  him  ;  the  rule  only   applies    where  the  party   is 
charged   criminally,  as  in   perjury,  or  in  an  action  for  a  malicious 
prosecution,  which  is  in  the  nature  of  a  criminal  proceeding." 

(1)  Lady  Dartmouth  V.   Roberts,    16  Gwill   1239.     Benson  v.  Olive,  2  Gwill. 

East,  334.     The  suit  was  abandoned  by  701.     Earl  of  Sussex  v.  Temple,    1  Ld. 

the  vicar,  who  from    ihat   time  had   ac-  Raym.  310. 

quiesced.     See  also  Travis  v.  Chaloner,  (2)  16  East,  334. 
3    Gwill.    1237.     Ashby    v.    Power.    3 


(g)  See  Note  647,  p.  929.     (h)  See  Note  648,  p.  930. 

Vol.  1.  46 


362 


Of  Proceedings  in  Chancery. 


[Ch.  4. 


Answer. 

Answer  of 
minor. 


Of  co-defend- 
ant. 


or  partoer. 


Of  married 
woman. 


The  answer  of  a  minor  by  his  guardian  is  not  evidence  against 
him(l);  because,  in  reality,  it  is  the  guardian's  answer.  The 
guardian  is  sworn,  not  the  minor,  who  possibly  may  know  noth- 
ing of  its  contents.  And  therefore  an  answer,  purporting  to  be 
the  answer  of  a  minor  by  his  mother  and  guardian,  may  be  read 
against  the  mother  in  another  caus-j  in  whicli  she  is  defendant  in 
her  own  capacity.  (2)  (i) 

The  answer  of  one  defendant,  generally  speaking,  is  not  evi- 
dence against  a  co-defendant  (3)  (j);  for  if  that  were  allowed,  a 
plaintiff  might  make  one  of  his  friends  a  defendant  for  the  purpose 
of  procuring  an  answer  in  his  favor  against  the  co-defendant,  who 
would  have  no  opportunity  of  cross  examination,  {k)  But  as  an 
adnn'ssion  by  one  of  two  partners,  concerning  joint  contracts  during 
the  partnership,  is  good  evidence  to  charge  the  other  partner  in  an 
action  against  him  alone  (4) :  so,  in  an  action  by  a  creditor 
agamst  some  of  the  partnership  firm,  the  answer  of  another  part- 
ner to  a  bill,  filed  by  other  creditors,  has  been  received  in  evidence 
against  the  defendants,  not,  indeed,  to  prove  the  partnership,  but, 
that  being  established,  as  an  admission  against  those  who  are  as 
one  person  with  him  in  interest.  (5) 

It  does  not  appear  to  have  been  expressly  determined,  whether 
an  answer  by  a  mairied  woman  can  be  used  as  evidence  against 
her  in  an  action  after  the  husband's  death.  In  the  case  of  Wrot- 
tesley  against  Bendish  and  his  wife  (6)  (where  it  'was  argued 
that  tiic  wife  was  not  bound  to  answer,  on  the  ground  that  the 
answer  could  not  be  read  against  iier  husband,  nor  against  her- 
self, as  she  is  supposed  to  ba  under  the  control  of  the  hus- 
band, and  not  to  answer  freely),  the  Lord  Chancellor  said,  "  he 
would  not  give  any  opinion,  whether  the  answer  may  be  read 
against  the  wife  when  discovert :  but  as,  in  all  times  hereto- 
fore,   the    wife  as    well    as    the    iiusb;;nd   had    been   compelled  to 

(1)  Eccleslon  V.  Petty,  Caith.  79.  .3  IJusscy  and  others,  v.  Eraddick,  1 
P.  Wnis.   237.     Gilb.  Ev     44.    Cowling     Tuunt.  Rep.  104. 

V.  Ely,  2  Stnrkie,  N.  P.  C.  a66.  (5)     Grant    v.    Jackson    and     others, 

(2)  Eeasley  v.  .Magialh,  2  Schoale  Peake,  N.  P.  C.  203.  See  Lucas  v. 
and  Lefroy's  I?cp.  34.  De  La    four,  1    Maule   &   Selw.   250.; 

(3)  Wych  V.    Meiil,  3    P.  Wms.  311,  vide  supra,  p   92. 

12.  Vts  S6l.  (I))  3  P.  Wins.  237.     See   Barron  v. 

(4)  Wood    and    others,    Assignees  of    Grillard,  3  Ves.  &  Beam.  166. 


(i)  Sec  Note  649,  p  931.     {j)  See  Note  650,   p.  931,     {k)  See  Note  651,  p.  932. 


Sect.   ].]         Of  Proceedings  in  Chancery.  363 

answer,  he   would   not  overtlirow    what    had    besn    the    constant  Depositions, 
practice.  (/) 

Depositions  in  a  suit  in  Chancery,  which  are  ihe  written  exami-  Depositions, 
nations  of  witnesses  taken  by  officers  of  the  court,  or  taken  by 
commissioners  specially  appointed  for  the  piu'pose,  may  be  2;iven 
in  evidence  in  an  action  at  common  law,  on  tlie  same  matter, 
between  the  same  parties,  or  between  any  who  chiim  under  them, 
if  it  can  be  proved  at  the  time  of  the  trial,  that  the  deponent  is 
dead  (l)(m);  or,  that  he  cannot  be  found  after  strict  enquiry  (2); 
or,  that  he  has  been  subpoenaed,  and  is  unable  to  attend  from 
sickness  (3)  (w) ;  or,  if  it  can  be  [)roved,  that  lie  has  been  kept  away 
by  the  contrivance  of  the  other  [)arty  (4);  or  that  he  is  out  of  the 
kingdom,  or  not  amenable  to  the  process  of  the  Court.  (5)  In 
either  of  these  cases,  depositions  are  admissible  in  evidence. 
But  if  the  witness  himself  is  in  a  state  to  be  produced,  his  depo- 
sitions cannot  be  received.  The  party  who  wishes  to  have  ths 
benefit  of  his  testimony,  ought,  if  he  is  able,  to  bring  him  forward,  • 
that  he  may  undergo  an  open  examination,  in  the  face  of  the  pub- 
lic, before  the  jury  and  the  court:  a  mode  of  enquiry  generally 
more  conducive  than  any  other  to  the  discovery  of  truth,  (o) 

It  is  the  common  practice  in  the  Court  of  Ciiancery,  when  an 
issue  or  trial  at  law  is  directed  to  make  an  order,  that  the  deposi- 
tions of  witnesses  shall  be  read  in  evidence,  if  it  be  satisfactorily 
proved  at  the  time  of  trial,  that  they  are  unable  to  attend  in 
person.  (6)  But  this  order  is  not  made  for  the  purpose  of  q  ,  . 
making  that  admissible  in  evidence,  which  is  of  a  nature  not  rending  depo- 
strictly  admissible  in  courts  of  common  law,  but  for  the  conve- 
nience of  the  parties.  For  if  depositions  are  offered  at  the 
trial  without  'such  an  order,  the  whole  record,  bill,  answer,  &c. 
must  be  proved;  but   if  there    is  an  order  for  reading  the   deposi- 

(1)  Godb    p.    t93.    pi.    276.    and   p.     Ray.  1166.     1  .\t'v.  44.5.     Gilb.   Ev.  5-1. 
826.   pi.    418.     Fry    v.    Wood,  I    Atk.     Bull.  N.  l\   2.34.     1   Vcs.  &  Be:iin.  22. 
Rep.    445.     Coker   v.    Faievvell,    2    P.  ^340.    Jonss  v.  Jones,  1  Cox   Cas.  13  4. 
Wins.    563.      Gilb.    Ev.   54.     Bull.  N.         (4)  Bull.  N.  P.  243. 

P.  239.  (5)   1  Atk.    Hep  445.     Lord  Altham 

(2)  Vide  supra  (1).  Benson  v.  Olive,  v.  Eiirl  of   Anglesey,  tri:il   at  b  ir   in   K. 
belore  Reynolds  C.  B.  2  Sir.  920.  15.,    Gilb     Eq.     Gas.      16.      IS.     Rep. 

(3)  Lultrell    v.    Reynel    and    others,  Temp   Holt,  736,  S.  C. 

1  Mod.  283.     Adm.   per  Cur.   in    Kins-         (6)  Corbet     v.     Corbel,    1    V^es.    & 
man   v.    Crooke,   trial    at    bar,    2    Ld.     Beam.  340. 


{/)  Sea  Note  652,  p.  932.   (w)  See  Note  653,  p.  933.  (n)  Sea  Nota  C54,  p.  933. 
(o)  See  Note  655,  p.  933. 


S64  Of  Proceedings  in  Chancery.  [Ch.  4. 

Depositions,  tions,  the  court  of  law  will  read  thetn  without  going  through  the 
regular  and  strict  course,  which  is  generally  necessary  for  the  pur- 
pose of  making  them  evidence.  (I)(j5) 

When  a  witness  lias  been  exanjined  on  interrogatories,  and 
afterwards  becomes  interested,  the  Court  of  Chancery  has  allowed 
his  depositions  to  be  read  for  him,  as  evidence  in  his  own  suit  on  a 
bill  of  revivor.  (2)  "  This,"  said  Lord  Hardwicke,  "has  been 
allowed  on  just  reason:  because  his  evidence  must  be  taken,  as  it 
stood  at  the  time  of  his  examination,  which  should  not  be  set  aside, 
unless  it  could  be  supplied  by  other  evidence."  (3)  But  a  differ- 
ent rule  has  been  established  in  couits  of  common  law.  It  was 
resolved  in  Tilly's  case,  by  the  unanimous  opinions  of  the  courts 
of  King's  Bench  and  Common  Pleas,  that  a  party  to  an  action  of 
ejectment  could  not  give  in  evidence  his  ovv'n  depositions,  though  he 
had  made  them  at  a  lime  when  he  was  perfectly  disinterested.  (4)  {q) 

Evidenca  Depositions  are  not  to  be  admitted  in  evidence  for  a  party  to  the 

azainst  whom.        •.-.  ,  ^  ^  i-  jm  c 

"  sinl  against  one   who  Vvas   not   a  party,  nor  claims  under  eitlier  ot 

tiic  parlies  (5)  (r) ;  nor  can  they  be  used  by  a  stranger  against 
one  of  the  parties.  {Q){s)  An  exception  has  been  made  in  cases, 
where  the  question  is  on  the  existence  of  a  custom,  or  on  the  right 
to  tolls,  or  where  hearsay  and  reputation  would  be  good  evi- 
dence (7)  (i) :  in  such  cases,  depositions  are  admissible  in  evi- 
dence, in  a  suit  between  other  parties,  provided  they  have  not  been 
n\Rc]e post  litem  motam.  (u)  But  if  the  question  at  issue  is  precisely 
the  same  in  both  suits,  the  depositions  in  the  former  suit  cannot  be 
admitted.  (8) 

On  leading  Depositions   in'a  suit,  instituted  for   the  purpose  of  perpetuat- 

qucstions,  &c.  j^^^  testimony,  are  not  objectionable,  on  the  ground   that  the  in- 

(1)  Palmer   v.    Lord    Aylesbury,    15     679.     pi.    8.       Cooke    v.    Fountain,     1 
Ves.  176.  Vern.  413.     A.s   to   the   general    princi- 

(2)  Goss   V.    Tracy,    2    Vern.    699.     pie,  see  ante,  ch.  2.    s.  1.  and   2  Price, 

1  P.  VVms.  287.  S.  C.   Haws  v.   Hand,  434. 

2  Atk.  615.  (6)  Rushworth  v.  Countess    of  Pem- 

(3)  In    Glyn    v.  Bank   of   England,  broke   and    Currier,  Hard.    472.     Gilb. 
2  Ves.  42.  Ev.  55. 

(4)  Tilly's  case,  1    Salk.   286.     See         (7)  Bull.    N.    P.    239.     Vide   supra, 
also    Holcroft   v.    Smith,  Eq.    Cas     Ab.  p.  243. 

224  ;    Baker    v.   Lord    Fairfax,    I    Sir.  (8)   Berkeley     peerage    case,    supra, 

101  ;  Bull.  N.  P.  242.  p.  243.     Freeman    v.    Phillips,    supra, 

(5)  Hob.     Rep.   155.     2    Roll.     Ab.     p.  246. 

(p)  See  Note  656,  p.  934.  (q)  See  Note  657,  p.  934.    (r)  See  Nore  658,  p.  934. 
(«)  See  Note  659,  p.  935.     (<)  See  Note  660,  p.  935.     (w)  See  Note  661,  p.  935. 


Sect.  1.]         Of  Proceedings  in  Chancery.  366 

terrogatories,  in    answer  to  which   they    were  made,  were  leading  Depositions, 
interrogatories,  and  such  as  could  not  regularly  be   put  on  the  ex- 
amination   .of  a  witness:  for    the  party,  against  whom  the  deposi- 
tions were   originally    made,  had   an   opportunity    of  objecting  to 
them,  and  miglit  have   applied    to  have  them  expunged,  instead  of 
which  he  allowed  publication  to  pass,  and  the  evidence  to  be  exem- 
plified; the   objection,  therefore,  though  it  might    have  been  ^taken 
with    effect    in  the  first    instance,  is  too  late,  after  such    an  acqui- 
escence by  the  party.  (I)    So  where  interrogatories  and  cross-inter-  From  interest- 
rogatories  have  been  exhibited  by  the  parties  to  a  suit,  the  answers  ^'' w^^sa. 
of  the  witness    cannot  be  objected  to  at  the  trial,  as  inadmissible, 
on  the  ground  that  he   was  interested,  and  ought  to  have  had  a  re- 
lease previous   to  his    examination  (2) ;  after  cross-interrogatories, 
the  objection  is  too  late,  (i?) 

When  a  bill  has  been  dismissed,  the  rule  respecting  the  admissi-  After  bill  dis- 
bility  of  the  depositions  has  been  laid  down  with  the  following  dis-  ™'^^^°- 
tinction.  If  the  bill  was  dismissed,  because  the  court  considered 
the  "matter  to  be  unfit  for  equity  to  decree,  the  depositions  may  still 
be  given  in  evidence,  provided  the  subject-matter  of  the  suit  was 
regularly  before  the  court,  and  within  its  jurisdiction.  (3)  (w)  But 
if  the  suit  in  equity  be  dismissed  for  the  irregularity  of  the  com- 
plainant, it  has  been  eaid  that  the  depositions  in  that  cause  cannot 
be  read  in  any  fresh  suit.  Thus,  where  a  devisee  brings  a  bill  of 
revivor,  on  a  suit  commenced  by  his  devisor,  and  depositions  are 
taken,  and  then  the  cause  on  the  hearing  is  dismissed,  on  the 
ground  that  a  devisee,  claiming  as  a  purchaser  and  not  by  repre- 
sentation, cannot  bring  a  bill  of  revivor,  the  devisee  will  not  be 
allowed,  on  exhibiting  a  new  original  bill  to  use  the  former  deposi- 
tions: for  in  the  first  cause,  in  which  the  complainant  mistook  his 
remedy,  there  was  no  complaint  regularly  before  the  court,  and, 
consequently,  there  could  not  regularly  be  any  depositions.  (4) 

If  the    witness   after  being  examined  dc  bene  esse  should    die,  Before  answer 
before    the    defendant  puts  in    his    answer,  his    deposition    cannot  P"*  '"* 

(1)  Williams   v.    Williams,  4  M.    &.  (3)    Smith  v.     Veale,  1  Ld.    Raym. 
S.  497.  735. 

(2)  Ogle   V.    Paleski,  Holt,  N.  P.  C.  (4)    Backhouse     v.     Middleton     and 
485.     2  Tidd.  Pr.  863.  others,    Chan.    Cas.    175.  Gilb.  Ev.  56. 


(u)  See  Note  662,  p.  935.     (w)  See  Note  663,  p.  935. 


366 


Of  Depositions,  Inquisitions,  ^c.         [Ch.  4. 


Depositions,  be  read  (1),  because  the  opposite  party  had  not  the  powei-  ofcross- 
exatnination;  and  the  rule  of  common  law  is  strict,  that  no  evi- 
dence shall  be  admitted,  but  what  is  or  might  have  been  under  the 
examination  of  both  parties.  "In  such  a  case,"  says  Ch.  B.  Gil- 
bert (2),  "  the  course  is  to  move  the  Court  of  Chancery,  that  the 
deposition  of  the  deceased  witness  should  be  read;  and,  if  the 
court  see  cause,  they  will  order  it,  and  this  order  will  bind  the 
parties  to  assent  to  the  reading  of  such  depositions,  though  it  does 
not  bind  the  court  of  nisi  prius." 

The  reason  why  depositions  are  not  read  in  evidence,  before  the 
defendant  has  put  in  his  answer,  has  been  before  mentioned  to  be, 
because  it  does  not  otherwise  appear,  that  the  adverse  parly  had 
liberty  to  cross-examine.  This  reason  will  not  apply,  where  the 
defendant  is  in  contempt  for  refusing  to  answer.  If  tiie  adverse 
party,  says  Ch.  B.  Gilbert,  had  been  in  contempt,  then  the  deix)si- 
lions  of  the  witnesses  shall  be  admitted,  for  then  it  is  the  fault  ol 
the  objector,  that  he  did  not  cross-examine  the  witnesses,  since  he 
would  not  join  the  examination.  (3)  This  subject  came  before  the 
Court  of  King's  Bench  in  the  case  of  Cazenove  v.  Vaughan  (4): 
from  which  it  now  appears  to  be  clearly  settled,  that  depositions 
are  not  allowed  to  be  read  in  evidence,  before  answer  put  in,  or 
before  the  party  is  in  contempt,  unless  he  has  had  an  opportunity 
of  cross-examining;  but  if  he  has  had  such  an  opportunity,  and 
has  omitted  to  avail  himself  of  it,  he  cannot  afterwards  make  that 
a  ground  for  objecting  to  the  depositions  as  evidence.. 

Sect.   II. 

Of  Depositions.     Inquisitions,  Examinations,  ^-c.  ^c 

Depositions  DEPOSITIONS    are    frequently    taken    with  the   consent  of  the 

on  interroga-   pg^^jgg  ^^   g  suit,  when  a  material    witness  is   about    to    leave  the 

kingdom,    or    resides     abroad.   (5)    These     depositions    may    be 

given    in    evidence,    if  at  the  time    of    the  trial    the  witness  has 


(1)  V.     Browne,    Hr.rdr.    315  2-10.      And   see    Marden    v.    Bound,    1 

Duttou  V.    Colt,   Sir  T.    Ray.   335-   n-  Vern.  331. 

Ford    V.     Guy,     cited   in     Howard    v-         (3)  Gilb.  Ev.  56. 

Tremain,    1     Show.    363.       Piercy    v.  (4)   1  Mauie  &  Seiw.  4. 

,  2  Jon.   165.     Bull.  N.    P.   240.  (5)  See  Ante,  p.  14.  As    to  the  mode 

(2)  Gilb.    Ev.    67,   58.    Bull,  N.  P.,  of  taking   the    examination    on     interro- 

gatories, See  2  Tidd.  Pr.  854. 


Sect.  2.]         Of  Depositions,  Inquisitions,  ^c.  367 

quitted  the  country  (I) ;  and  they  are  admissible  in  criminal  as  Depositions, 
well  as  in  civil  cases.  (2)  But  if  the  trial  comes  on  before  his  de-  ' 
parture,  or  after  his  return,  the  depositions  cannot  be  read.  This 
rule,  however,  is  not  to  be  taken  so  strictly,  as  to  make  it  abso- 
lutely necessary,  that  a  witness,  who  is  about  to  go  abroad,  should 
be  on  his  voyage,  when  the  trial  comes  on.  If  the  ship  has  sailed, 
though  it  may  have  put  back — or  if  the  witness  be  on  board,  and 
the  ship  ready  to  sail,  tiiough  prevented  by  contrary  winds — that 
seems  to  be  sufhcient.  (3)  But  it  would  not  be  sufficient  to  show, 
that  the  witness  is  a  seafaring  n)an,  and  that  he  lately  belonged  to 
a  vessel  lying  at  a  certain  place,  w-iihout  proving  that  some  effort 
had  been  recently  made  to  procure  his  attendance.  (4)    « 

Where  an  indictment  or  information  is  exhibited  in  the  King's  Depositions  in 
Bench  for  an  offence  committed  in  India,  or  where  a  suit  has  been  ^"'^'^• 
commenced  in  any  court  in  this  country  for  a  cause  of  action 
arising  in  India  (5),  the  depositions  of  witnesses  may  be  obtained 
under  the  provisions  of  the  statute  13  G.  3.  c.  63.  ss.  40.  &  44. 
This  statute  enacts  that  the  court  may  award  a  writ  of  mandamus 
to  the  judges  of  the  courts  in  India,  as  the  case  may  require,  for 
the  examination  of  witnesses,  who  are  to  be  examined  publicly  in 
the  court,  upon  oath  administered  according  to  the  form  of  their 
several  religions;  and  these  depositions,  duly  taken  and  returned, 
in  the  form  prescribed  by  the  act,  are  to  be  allowed  and  deemed  as 
good  and  competent  evidence,  as  if  the  witnesses  had  been  sworn 
at  the  trial,  and  examined  viva  voce,  (6)  (x) 

Depositions  on  the  bailment  or  commitment  of  persons  charged  Depositions  in 
with  felony,  used  to   be  taken  in    pursuance  of  the  statutes,  1  &  2  ''^^^^  of  felony 
P.  &  M.  c.  13.  and  2  &  3  P.  &  M.  c.  10.     They  are  now  taken 
under  the  statute  7  G.  4.  c.  64.  which  lepeals  the  two  earlier  sta- 
tutes.    The  second  section  of  st.  7  G.  4.  c.  64.  enacts,  that   the 
two  justices   of  the    peace,  before  tliey  shall  commit  to  bail,  and 

(1)  Anon,  case,  2  Salk.  691.  (5^   Francisco  v.    Gilmore,  1    Bos.  & 

(2)  R.     V.   Morphew,    2     Maule    &     Pull.  177. 

Selw.  602.  (6)  Oiher  statutes  of  a   similar   na- 

(3)  Fonsiclc    v.    Agar,  6   Esp.  N.    P.     ture  are  cited  in  Chap.  I.  p.  15. 
C.  92.     Ward    v.  Wells,  1  Taunt   461. 

(4)  Falconer    v.    Hanson,  1    Campb. 
172. 


(a;)  See  Note  664,  p.  936. 


368  Of  Depositions^  Inquisilions,  ^c.         [Cli.  4. 

Depositions,  the  justice  or  justices,  before  the  committing  to  prison,  shall  take 
the  examination  of  the  person  arrested  for  felony  or  on  suspicion  of 
felony,  and  the  information  upon  oath  of  those  who  shall  know  the 
facts  and  circumstances  of  the  case,  and  shall  put  the  same,  or  as 
much  thereof  as  shall  be  material,  into  writing;  and  such  justices 
and  justice  respectively  shall  subscribe  all  such  examinations,  in- 
formations, bailments,  and  recognizances,  and  deliver,  or  cause  the 
same  to  be  delivered  to  the  proper  officer  of  the  court  in  which  the 
trial  is  to  be,  before  or  at  the  opening  of  the  Court. 

Depositions  in        The  third  section  of  the  same  statute  gives   a  power  of  taking 
case  of  niisde-  .    ^  .         .  -       .    ,  i-iii  iri 

meanor.  inlormatiftis  m  cases  oi   misdemeanor,  which  had  not  betore  been 

given.  It  enacts,  that  every  justice  of  the  peace,  before  whom  any 
person  shall  be  taken  on  a  charge  of  misdemeanor  or  suspicion 
thereof,  shall  take  the  examination  of  the  person  charged,  and  the 
information  upon  oath  of  those  who  shall  know  the  facts  and  cir- 
cumstances of  the  case,  and  shall  put  the  same  or  as  much  thereof 
as  shall  be  material,  into  writing,  before  he  shall  commit  to  prison, 
or  require  bail  from  the  person  so  charged;  and  shall  subscribe  all 
examinations  and  informations,  and  deliver  or  cause  the  same  to  be 
delivered  to  the  proper  officer  of  the  court  in  which  the  trial  is  to 
be,  before  or  at  the  opening  of  the  Court,  in  like  manner  as  in 
cases  of  felony,  [y) 

Before  the  statutes  of  Philip  and  Mary,  a  deposition  taken  before 
a  justice  of  the  county,  where  a  felony  was  committed,  would  not 
have  been  evidence,  even  though  the  witness  had  died,  or  was 
unable  to  travel.  (1) 

The  following  decisions,  which  were  made  with  reference  to  the 
statutes  of  Philip  and  Mary  (under  which  heretofore  depositions 
used  to  be  taken,  but  which  statutes  have  been  repealed  by  st.  7 
G.  4.  c.  64.),  appear  to  be  equally  applicable  with  reference  to  the 
repealing  statute. 


When  BTi 
dence. 


The  deposition  of  a  witness,  taken  upon  oath  (2),  in  the  pre- 


(1)  ST.  R.  710.  722. 

(2)  Kelyng.    Rep.  2.     1  Hale,  P.  C. 
5.    586.     2    Hal.    P-  C.    52-    120.    284. 


Dalton,  Just-  c-  111-    p.  369.  Bull.  N.  P. 
242. 


(y)  See  Note  665,  p.  936. 


Sect.  2.]         Of  Depositions,  Inquisitions,  ^-c.  369 

sence  of  a  prisoner  (I),  who  has  been  brought  before  the  magis-  Depositions^^ 
trate  on  a  charge  of  felony,  may  be  given  in  evidence  on  the  trial 
of  an  indictment  for  the  same  felony,  if  it  be  proved  on  oath,  to  the 
satisfaction  of  the  Court,  that  the  informant  is  dead  (2),(z)  or 
prevented  by  sickness  from  attending  (3), (a)  or  that  he  is  kept 
away  by  the  means  and  contrivance  of  the  prisoner(4);  provided 
also,  that  the  deposition,  offered  in  evidence,  is  proved  to  be  ihe 
same  as  was  sworn  before  the  justice,  wiihout  any  alteration.  (5) 

The  deposition?  ought  to  be  taken  as  nearly  as  possible  in  the  How  taken, 
words  used  by  the  deponent;  the  statute  requiring  the  magistrate 
to  take  the  information  of  those  who  bring  the  prisoner,  and  put 
the  same,  or  as  much  thereof  as  shall  be  material,  in  writing.  It 
has  been  before  observed,  that  the  information  should  be  taken 
in  the  presence  of  the  prisoner,  to  give  him  an  opportunity  of 
cross-examining.  (6)  The  prisoner  is  usually  allowed  to  be  present 
from  the  commencement  of  the  examination;  but  in  case  any 
part  of  the  information  has  been  taken  while  he  was  not  present, 
it  will  be  necessary  to  iiave  that  part  afterwards  read  over  dis- 
tinctly in  the  presence  of  the  prisoner  and  the  deponent;  and  if 
the  deponent  then  swear  to  the  truth  of  the  statement  in  the  pris- 
oner's presence,  this  will  be  a  regular  taking  of  the  information, 
and  the  deposition  may  be  used  against  the  prisoner.  (6)(c) 

The  new   act   requires   the  justices   or  justice   to   subscribe  the  Signing, 
examinations   and   informations;  and  the  coroner  to  subscribe  the 
evidence  given  before  him,  which  is  to  be  put  in  writing. 

It   is  not    essential    to    the    validity   of  depositions,   that    they 

(1)  R.    V.    Payne,  5  Mod     163,  cited     P.   C.    52,  283.      Kel.    55,  the    case    of 
by  Ld.    Kenyon,  3  T.   R.  723.     Wood-     depositions    before    a    coroner.      Gilb 
cock's   case,  2   Leach,  Cr.  C.   566.     R.     Ev.  124,  and  see  infra,  p.  372. 

V.    Vipont,  2   Burr.    1163.     R.  v.  Din-         (4)  Kel.    55.      Post.    Disc.    p.    337. 
gler.  Leach,  Cr.  C.  633.  Harrison's  case,  4  St.  Tr.  492.     Vide 

(2)  4lh  Res.    in   Ld.   Morley's  case,     infra,  p.  372. 

Kel.  55.    Bromwich's  case,  1  Lev.  180.  (5)   1  Hal.  P.   C.  305.     2  Hal.  P.  C. 

Dalt.    c.    111.   p.    369.     Adm.   per  Cur.  52,284.     Kel.  55. 

in  Payne's  case,  1    Salk.    281.      1    Hal.  (6)   R.  v.  Smith,  2  Starkie,  N.   P.  C. 

P.  C.  305.     Bull.    N.    P.  242.     Case  of  203.     Holt,    614.    S.  C.    Russ.   &   Ry. 

Fleming   and  Windham,    2    Leach,    Cr.  Cr.    C.     339.    S.    C.     It   appears    also, 

C.     996.      Westbeer's    case,    1    Leach,  from    the    ease    of  the    King    v.    Crow- 

Cr.  C.    14,  (in  which   case    the   deposi-  ther,    1    T.    R.    125,   thai    the  witness 

tions  wore  those  of  a   deceased  accom-  should   bo   re-sworn  in   the  presence  of 

plica.)  the  prisoner. 

(3)  1  Hal.  P.  C.   305,  5S6.     2  Hal. 


(z)  See  Note  666,  p.  937.  (a)  See  Note  667,  p.  938.  (6)  See  Note  663,  p.  938. 
(c)  See  Note  669,  p.  938. 

Vol.   I.  47 


370 


Of  Depositions,  fnquisitions,  ^c.        [Ch.  4. 


Depositions,  should  be  signed  by  the  deceased  witness.  In  Flemming's  case, 
on  an  indictment  for  a  rape,  all  the  Judges  concurred  in  opinion, 
that  the  depositions  of  a  girl  deceased,  on  whose  person  the  crime 
had  been  committed,  taken  on  oath  by  the  committing  magistrate, 
had  been  properly  admitted  in  evidence  at  the  trial,  though  the 
depositions  were  not  signed  by  the  deceased.  (l)(rf) 

The  inforiiiaiions  against  the  prisoner  are  to  be  taken  on  oath; 
the  examination  of  the  prisoner,  not  upon  oaih.  (2)  (c)  And  parol 
evidence,  to  add  to,  or  vary  ihe  de|)OsiiIon,  is  not  admissible.  (3)  (/) 

Tile  information  of  a  witness,  taken  before  justices  of  the  peace 
on  a  charge  of  misdemeanor,  may  now  be  given  in  evidence  on  the 
trial  of  that  misdemeanor,  under  the  provisions  of  the  new  act  be- 
fore referred  to;  but  informations  taken  by  justices  are  not  evi- 
dence in  civil  actions,  or  on  an  appeal  for  murder  (4),  or  on  trials 
for  high  treason.  (5).  The  information  of  a  person  complaining  of 
an  assault  and  robbery,  has  been  held  to  be  admissible,  on  a  trial 
lor  the  murder  of  that  person,  who  died  of  the  wounds  received  in 
the  assault.  {Q){g) 

Petty  treason.  Qn  a  charge  of  petty  treason,  infoiniations,  taken  before  a 
justice  or  coroner,  seem  to  be  admissible  in  evidence;  for  the 
offence  of  petty  treason  is  substantially  the  same  as  the  offence  of 
murder.  (7)  But  as  the  statute  of  5  &  6  Edw.  6.  c.  11.  s.  12. 
requires  the  evidence  of  two  lawful  accusers  in  petty  treason,  no 
less  than  high  treason,  to  warrant  a  conviction  of  the  party 
accused  (8),  it  is  plain,  that  a  conviction  of  petty  treason  cannot 
be  grounded  on  such  an  inforuiaiion  alone.  (9)  However,  as  a 
prisoner  may  be  convicted  of  rnunler  on  an  indictment  for  petty 
treason,  depositions  taken  before  a  coroner,  or  informations  taken 
on  oath  before  justices  of  the  peace,  pursuant  to  the  statute,  are 
sufficient  without    any  other  evidence,  to  support   a    conviction  of 


On  oath. 

Parol  evi- 
dence. 


Evidence  in 
misdemean- 
ors. 


Not  in  civil 
cases,  or  high 
treason. 


(1)  Case  of  Flenijtjg  ami  Wind- 
hatn,  2  Leach,  Cr.  C.  996. 

(2)  Vide  supra,  p.  113 

(3)  R.  V.  Thornton,  Warw.  Sum- 
mer Ass.  1817,  by  Ilolroyd  J,  and 
see  R.  Smith,  supra,  p.  114. 

(4)  R.  V.  Payne,  1  Ld.  Raym.  729 

(5)  Post.    Disc.    336.      1    Hale,  306. 


(6)  It.  V  Smith,  Rhss.  &  Ry.  Cr. 
C  3  !0.  li.  This  was  decided  against 
the  o,  inion  of  Lord  Tenterden:  and 
the  question  aroso  under  the  stat  oF 
Philip  and  ;Mary. 

(7)  See  Foster,  336. 
iS)    Vide  supra,  p.  152. 
{'))  Foster,  337. 


((i)  Seo  Note  670,  p   939.  (e)  Sea  Not g  671,  p.  939.    (/)  See  Note  672,  p.  939. 
(ff)  See  Note  673,  p.  939. 


Sect.  2.]         Of  IJej)ositio7is,  Inquisitions,  ^c.  571 

murder,  tliougii   not  sufficient  Id    support   a   conviction   of    petty  Depositions. 
treason.  (1) 

It  often  happens   liiat   iho   felon  is   taken  and   examined   by   a  Deposition, 

I  .1  cp  .  -..J     taken  in  an- 

magistrate  ni   a  county,    xvhere   the   offence   was  not  committed;  Qji^gjj.o^jjj„ 
in   such   a  case,   tlie    examinations   and   informations   are    to   be 
transmitted   into  the  county   where   the  felon  is  indicted,  and    inay 
there  be  read  in  evidence  against  him,   though   the   magistrate  had 
not  original  cognizance  of  the  offence.  (2)  (k) 

As  informations,  vvhen  judicially   and   regularly  takeii,    are  evi-  Deposition,  to 

,  .  .  .~..~  I'lr  i'i     contradict 

dence  agamst  a  prisoner,  it  the  mformant  dies  betore  the  trial;  witness, 
so,  on  the  other  hand,  where  the  informant  himself  gives  evi- 
dence, tiie  informations  may  be  used  for  the  purpose  of  contradict- 
ing his  testimony,  (i)  One  of  the  objects  of  the  legislature  in 
passing  the  statutes,  was  to  enable  the  judge  and  jury,  before 
whom  the  prisoner  is  tried,  to  see  whether  the  witnesses  at  the 
trial  are  consistent  -r. ith  the  account  given  by  them  before  the 
committing  magistrate.  (3)  It  was  admitted  in  Lord  Stafford's 
case  (4),  that  the  deposition  of  a  witness,  taken  before  a  justice  of 
the  peace,  might  be  read,  at  the  desire  of  the  prisoner,  in  order  to 
take  off  the  credit  of  the  witness,  by  showing  a  variance  between 
the  deposition  and  the  evidence  given  in  court  viva  voce.  And  it 
very  commonly  happens  that  judges  point  out  such  discrepancies 
to  the  notice  of  the  jury.  (5) 

The  4lh  section  of  the?  G.  4.  c.64.  enacts,  that  every  coroner,  Depositions 
upon  any  inquisition   before  him   taken,   whereby  any   person  shall  ner. 
be   indicted  for   manslaughter   or   murder,  or   as  an   accessary   to 
murder  before   the  act,  shall   put  in   writing  the   evidence  given  to 
the  jury  before  him,  or  as  much  thereof  as   shall  be  material;  and 
shall  certify  and  subscribe  the   same  evidence,  and   also   the   in- 

<1)   Radbourne's    case,  2  Leach,    Cr.  Tr.  834 — 83S.  Dr- Sheriden's  case- — By 

C.  512.  Fost.  Disc.  106,  328,  .S37.  the  law  of  Scotland,    the  deposition  of  a 

(2)  Dalt.  Just.  c.  111.  p.  3(}9.  2  witness  cannot  be  produced  at  the  trial 
Hal.  P.  C.  28.5.  Cro.  Car.  '..la.  And  to  di.scredit  iiis  testimony.  See  Hume's 
see  St.  44  G.  3.  c   92.  Commentary  on  the  Criin.  Law  of  Scot- 

(3)  See  the  judgment  in  Lamhe's  land,  vol.  ii.  p  367,  and  Ijnrnett'.s  Trea- 
case,  2  Leach,  Cr.  C.  633.  lise,  p.  464. 

(4)3St.  Tr.  p.    131.     Hawk.    V.  C.  (5)  See  Olroyd's  case,  supra,  p.  310. 

b.  2.  c.  46.  s.  22.     See  31    Howell's  S't. 


(A)   See  Note  (574,  p    940.      (t)   Sec  Note  675,  p.  940. 


372 


Of  Depositions,  Inijuisitions,  <,^c.         [Ch.  4. 


Depositions,  qnisition  before  him  taken,  and  shall  deliver  the  same  to  the 
proper  officer  of  the  Court  in  which  the  trial  is  to  be,  before  or  at 
the  opening  of  the  Court. 


When  evi- 
dence. 


Depositions  in 
absence  of 
prisoner. 


It  has  been  held,  in  the  construction  of  the  statute  of  Philip  & 
Mary,  under  which  depositions  before  coroners  used  to  be  taken, 
(and  the  same  decisions  seem  to  apply  equally  to  cases  under  the 
new  statute,  above  cited,)  that  in  case  any  of  the  witnesses,  who 
have  been  exanriined  before  the  coroner,  are  dead,  or  kept  out  ot 
the  way  by  the  means  and  contrivance  of  the  prisoner,  or  unable 
to  attend  frou)  sickness  (1),  their  dejiositions  may  be  read  on  the 
trial  of  the  prisoner;  provided  also,  that  the  deposition,  offered  in 
evidence,  is  proved  to  be  the  same  as  was  sworn  before  the  coroner, 
without  any  addition  or  alteration. 

It  seems  to  be  the  general  opinion,  that  the  depositions  taken 
by  the  coroner  are  admissible,  though  taken  not  in  the  presence  of 
the  person  against  whom  they  are  tendered  in  evidence.  With 
regard  to  depositions  taken  before  justices,  in  the  absence  of  the 
person  charged,  it  is  settled,  that  they  are  not  admissible  in  evi- 
dence against  him  afterwards  on  his  trial,  (j)  The  statute  of  Philip 
&  Mary,  which  first  required  justices  to  take  examinations  (and 
under  which  the  examinations  have  been  adjudged  to  be  admis- 
sible in  evidence),  implies,  that  the  person  accused  is  present  at 
the  time  of  the  enquiry;  the  words  of  the  statute  being,  "that 
he  shall  take  the  examination  of  the  prisoner,  and  the  information 
of  those  that  bring  him:''^  and  a  similar  provision  is  contained  in 
the  act  recently  passed.  But  in  the  statute  of  Philip  &,  Mary, 
respecting  the  duties  of  the  coroner,  there  is  nothing  from  which 
such  an  inference  can  be  made;  for  that  statute  only  requires 
the  coroner  "  to  put  in  writing  the  evidence  given  to  the  jury  before 
him,  and  certify  the  same  evidence  at  or  before  the  time  of  the  trial.'''' 
Nothing  is  here  said,  as  in  the  former  case,  respecting  the 
taking  of  the  examination  of  the  prisoner:  if  there  had  been 
such  a  requisition,  it  could  seldomi  be  carried  into  effect;  for  the 
inquisition  must  be  super  visum  corporus,  that  is,  necessarily 
within   a   limited     period;  and   it   very   commonly    happens,  that 

(1)  So  held  bv  all  the  Judges  in  Loid      12  Howell's  St.  Tr.  851;    2  Hale  P.  C. 
Morten's    case,    Kel.    55.       6   Howell's     284.     Gilb.  Ev.  124. 
St.  Tr.  770,  776.  S.  C.  Harri^son's  case. 


(»  See  Note  676,  p.  940. 


Sect.  2.]  Of  Depositions,  Inquisitions,  ^c.  373 

the  person  who  did  the  act  is  unknown,  or,  if  known,  that  lie  con-  Depositioni. 
trives  to  escape  before  the  inquisition  is  held.  Tiie  question  as 
to  the  admissibihty  of  depositions,  taken  before  the  coroner  in  the 
absence  of  the  prisoner,  must  depend  principally  upon  this, 
whether  they  can  regularly  be  taken  in  his  absence;  and,  consid- 
ering the  difference  of  the  provision  in  the  one  statute  from  that  in 
the  other,  it  appears  to  be  as  regular,  generally  speaking,  for  the 
coroner  to  take  the  evidence  in  the  absence  of  the  prisoner,  as  it  is 
for  the  justice  to  take  the  informations  in  his  presence. 

The  following  references  may  be  cited  in  favour  of  the  admissi-  Authorities, 
bility  of  such  evidence.  A  book  of  authority  (1),  after  stating  the 
general  rule,  that  depositions  are  not  evidence,  where  there  cannot 
be  a  cross-examination,  adds,  by  way  of  exception  "yet,  if  the 
witnesses,  examined  on  a  coroner^s  inquest,  be  dead  or  beyond  sea, 
their  depositions  may  be  read;  for  the  coroner  is  an  officer  appoint- 
ed on  behalf  of  the  public,  to  make  enquiry  about  the  matters 
within  his  jurisdiction. ''  In  the  case  of  the  King  against  the  In- 
habitants of  Erisvvell(4),  Mr.  Justice  Buller,  in  support  of  his 
opinion  on  the  case  then  before  the  Court,  stated,  that  depositions 
before  a  coroner  had  long  been  settled  to  be  good  evidence,  though 
the  person  accused  be  not  present  when  they  are  taken,  nor  ever 
heard  of  them  till  the  moment  when  they  are  produced  against  him: 
and  Lord  Kenyon  observed,  that  the  case  alluded  to  was  an  ex- 
ception, founded  on  the  statute  of  Philip  &  Mary  (3):  "  besides," 
he  added,  "  the  examination  before  the  coroner  is  an  inquest  of 
office:  it  is  a  transaction  of  notriety,  to  which  every  person  has  a 
right  of  access;  and  writs  of  ad  quod  damnum  have  been  frequently 
set  aside,  for  want  of  this  notoriety  in  the  execution  of  them  by  the 
sherifi."  In  Harrison's  case,  a  deposition  was  admitted,  which  ap- 
pears to  have  been  taken  in  the  absence  of  the  prisoner  (4) :  and  in 
the  case  of  King  v.  Purefoy,  a  deposition  was  admitted  under 
similar  circumstances,  after  an  objection  taken  by  the  counsel  for 
the  prisoner.  (5)  (A;) 

(1)  Bull.  N.  p.  242.  prisoner   as   being  at  that   time  in  New- 

(2)^3  T.  R.  713.  Vide  infra,  p.  376.  gate:  and    it  may   be  inferred   from  the 

(3)  3  T.  R.  722.  first  that  he  was  not  present. 

(4)  12  St.  Tr.  853,   Sim.  23.    There  (5)  Before    Hotham     B.    Maidstone 
were  ^two    depositions     in     this     case.  Sum.  Ass.  1794.      Peake,  Ev  68. 
The     second     deposition   describes  the 


(fe)  See  Note  677,  p.  9i0. 


374  Of  Depositions,  Inquisitions,  ^c.  [Ch.  4. 


Inquisition  by  All  inquisition  of/eZo  de  se,  taken  before  the  coroner  super  visum 
corporis^  is  considered  by  Lord  Coke  to  be  conclusive  evidence  of 
the  fact  against  the  executors  or  adniinistrators  of  the  deceased  (1) 
But  Lord  Hale,  in  his  Pleas  of  the  Crown  (2),  is  of  a  different 
opinion,  justly  conceiving  it  unreasonable  that  they  should  be  con- 
cluded, and  lose  the  goods  of  the  deceased  without  an  answer,  by 
an  inquisition  which  may  be  taken  by  the  coroner  behind  their 
backs.  And  it  is  now  settled  that  such  an  iuqui^iition  may  be 
removed  into  the  King's  Bench,  and  traversed  by  the  executors 
and  administrators  of  the  deceased.  (3)  If  it  be  found  by  the 
coroner's  inquisition,  in  case  of  the  deatli  of  one  who  is  not/e/o  de 
se,  that  the  person  who  committed  the  offence,  fled  for  it,  the 
authorities  hold  this  finding  to  be  conclusive  and  not  traversable; 
yet,  upon  principle,  it  seems  that  the  one  case  is  as  properly  trav- 
ersable as  the  other.  (4) 

escheat""  °^  There  are  various  other  kinds  of  inquisition  of  office,  which,  if 
regularly  taken,  and  under  a  com])etent  authority,  will  be  admit- 
ted by  courts  of  law,  as  evidence  of  the  facts  there  found.  Some 
inquisitions  are  taken  on  an  enquiry  made  by  the  sheriff,  or  coroner 
or  escheator,  by  virtue  of  their  office,  or  under  a  writ  directed  to 
them  for  that  purpose:  others  are  taken  by  commissioners, 
especially  appointed  to  examine  witnesses  on  oath,  and  enquire 
into  the  several  matters  specified.  These  inquisitions  are  evidence 
of  the  facts  there  found,  even  against  third  persons.  An  inquisi- 
tion of  escheat,  for  instance,  is  evidence,  in  any  suit  and  between 
any  parties,  that  the  person,  who  was  the  subject  of  enquiry,  died 
without  issue,  as  the  commissioners  have  stated.  This  kind  of 
inquisition  is  presented  on  the  oath  of  a  jury,  and  is  a  formal  and 
solemn  finding  of  the  several  facts.  The  escheators  are  bound  to 
meet  in  a  public  and  open  place;  and  every  person  is  to  be  allow- 
•    ed  to  give  evidence  openly  in  their  presence.  (5)  (/) 

(1)  3  Inst  55.  (5)  St.  I   H.    S.  c.  S      An  account  of 

(2)  1  PI.  Cr.  416.  1  East,  I'.  C.  these  inquisitions,  post  mortem,  may 
889.  be  seen  in  the  Report  of  the    proceedings 

(3)  See  1  Saund.  362,  note  1,  by  of  Commissioners  of  Public  Rec- 
the  Editor,  who  has  there  collected  ords.  Append.  (F.  1.)  p.  63.  An  ac- 
the  cases  on  this  subject.  As  to  the  count  also  of  inquisitions  ad  quod 
duty  of  the  coroner  in  taking  an  in-  damnum  may  be  seen  in  the  same 
quest,  see  stat.  I  H.  8.  c  8.  Report,  App.  (F.  2  ) 

(4)  See  n.  (3),  and  Hawk.  b.  2.  c.  9. 
i.  54. 


(0  See  Note  678,  p.  941. 


Sect.  2.]  Of  Depositions^  Inquisitions,  ^c.  375 

On  an  inquisition  also   iincJer  a  writ  of  extent,  as  to  the  effects,  Inquisition. 
in  possession  of  a  party,  a  person  rlaiming   property  in  the  effects,  inquisition  on 
which   are  the  subject  of  enquiry,  may    put   questions  to   the  wit-  ^v""''  "^^  extent, 
nesses  examined  on  the   part  of  the  prosecutor;  and   if  the  sheriff 
refuse  to  allow  such  questions,  the  inquisition  will  be  irregular,  and 
the  extent  may  on  this  grotuid  be  set  aside.  (1)  (m) 

An  inquisition  of  lunacy  is  evidence  on  the  trial  of  an  indict- I"q"'sition  of 
menl,  to  show  that  the  prisoner  was  insane,  when  he  committed 
the  offence.  (2)  Such  inquisitions  are  evidence  even  against  third 
persons,  who  were  strangers  to  the  proceeding.  Thus,  in  a  case, 
where  an  inquisition  of  lunacy  was  offered  as  evidence  to  affect  the 
rights  of  third  persons,  and  objected  against  as  res  inter  alios  acta. 
Lord  Hardwicke  over-ruled  the  objection,  and  said,  that  inquisi- 
tions of  lunacy,  and  likewise  other  inquisitions,  as  post  mortem,  &c., 
are  always  admitted  to  be  read,  but  not  conclusive.  (3)  And  in  an 
action  upon  a  bond  against  the  executors  of  the  obligor,  an  inquisi- 
tion of  lunacy  has  been  adiDitted,  under  tlie  plea  of  non  est  factum, 
for  the  purpose  of  showing,  that  the  obligor  had  been  a  lunatic 
from  a  certain  lime,  as  found  by  the  inquisition.  (4)  (n) 

An  inquisition  taken  by  vir'ue  of  a  commission,  which  issued  in  By  warrant  of 

the  reign  of  Queen  Elizabeth,  under  ilie  seal  of  the  Court  of  Ex-  chequer. 

chequer,  to  commissioners  to  inquire,  whether  a    Prior  was  seised 

of  certain  lands  as   parcel  of  a  manor,  or   whether  the  crown  was 

seised  of  them  after  the  dissolution  of  the  priory,  was  adjudged  to 

be  good  evidence  of  those  facts.  (5)      And  an  inquisition,  taken  un-  By  order  of 

der  an  order  of  the  House  of  Commons,  is  evidence  respectingthe  l^^^^^  °^ 
.  1  o         Commons. 

fees  of  certain  officers.  (6)(o) 

Inquisitions,  which   are  exlraiudicial,  are  not  admissible  in  evi- ^"^1"'^"'°"  ^y 

riM  •         •    •  •  II  r       -r  ■,     •  r  Sheriff',  as  to 

dence.      Ihus  an  inquisition  made  by  a  sheriff  's  jury,  for  the  pur-  property, 
pose  of  ascertaining,  who  was  eniiiled    to   the   property  of  goods 
taken  under  an  execution,  seems  not  to  be  admissible  evidence  even 

(1)  R.  V.  Bickley,  3  Trice,  454.  cutors  of  Jervoise,  3  Campb.   126,  be- 

(2)  R-  V.  Bov\ler,  O.  B.   June,  1812,     fore  Lord  Eiienborough  C.  J. 

before   Le    Blanc   J.    and    Lord    Ch.  J.  (5)  Tooker     v.    Duke    of    Beaufort, 

Gibl)s.  1  Burr,  146.     Sayer,  297.  S.  C. 

(3)  Sergcson  v.  Sealey,  2  Alk.  412.  («)  Green  v-  Hewit,  Peake,  N.  P.  C. 

(4)  Faulder  v.  Silk  and  another,  exe-  184. 


(m)  See  Note  679,  p.  94L     (n)  See  Note  680,  p.  942.  (o)  See  Note  631,  p.  642. 


376  Of  Depositions,  Inquisitions,  ^c.         [Ch.  4. 

Examination,     against  the  sheriff,  in  an  action  of  trover  brought   by  the  party,  in 
whose  favour  the  inquisition  was  found.  (1)      Tliis   evidence   was 
received  at  the  trial  of  the  cause  by  Mr.  Justice  Duller,  who  admit- 
Not  concln-      ted  ir,  but  held  it  not  to  be  conclusive;  and  a  verdict  having  been 
■'^®-  found  for  the  defendants,  a  motion  was  afterwards  made  for  a  new 

trial,  on  the  ground,  that  the  inquisition  was  conclusive  evidence 
in  favour  of  the  plaintiff,  as  against  the  person  who  contested  the 
property  with  the  plaintiff,  and  who  was  present  at  the  time  of 
taking  the  inquisition.  But  the  Court  refused  the  appHcation.  Ch. 
J  Eyre  said,  he  doubted  whether  a  sheriff  can,  strictly  speaking, 
hold  any  inquisition  as  to  property,  except  under  a  vi^rit  de  proprie- 
tate  probanda  in  replevin.  And  Mr.  Justice  BuUer  said,  he  thought 
he  ought  not  to  have  admitted  the  evidence  at  the  trial,  as  the 
Not  eYidence.  inquisition  was  not  under  the  king's  writ,  but  merely  a  proceeding 
by  the  sheriff  on  his  own  authority,  (p) 

Examination  ^j^g  general  rule,  respecting  the  admissibility  of  depositions  after 
to  settlement,  the  death  of  the  witness,  is,  that  they  are  not  evidence,  unless  they 
have  been  taken  judicially,  and  unless  the  party,  whose  interests 
would  be  affected  by  them,  had  an  opportunity  of  being  present 
and  cross-examining  the  deponent,  {q)  It  is  therefore  now  clearly 
established,  that  the  ex  parte  examination  of  a  pauper  concerning 
his  settlement,  taken  on  oath  before  magistrates,  is  not  admissible, 
upon  a  question  of  settlement,  as  evidence  against  the  appellant 
parish.  (2)  (r)  The  objection  against  their  admissibility  is,  not 
that  the  magistrates  have  no  power  to  administer  an  oath,  but  that 
the  examination  is  ex  parte,  obtained  at  the  instance  of  overseers, 
whose  parish  would  be  benefitted  by  the  removal,  and  behind  the 
backs  of  the  appellants,  who  received  no  notice  of  the  proceeding, 
and  had  not  the  benefit  of  a  cross-examination  (3);  and  there  are 
no  words  (under  which  paupers  in  the  statute  13  &  14  C.  2.  c.  12. 
are  removed,)  expressly  requiring  the  justices  to  take  down  any 
examination  in  writing. 

(1)  Latkow   V.    Earner   and  Barnett,  (2)  R.      v.      Nuneliam     Courtenay, 

Sheriff  of  Middlesex,  2  H.  Black.   437.  1  East,   373.     R.  v.    Ferry  Frystone,  2 

Glossop   V.   Poole,    3   Malue   &    Selw.  East,  54.     R.  v.  Abergwilly,  ib.  63. 

176.  (3)  See  R.  v.  Erisweil,  3  T.  R.  725. 


{p)  See  Note  682,  p.  943-  {q)  See  Note  683,  p.  943.     (r)  See  Note  684,  p.  944. 


Sect.  2.]        Of  Dtyosilmixsy  Inquisitions ^  ^'C.  377 

In  the  muliiiy  act  there  is  a  special  provision  as  to  the  exaniina-  E^aro'nation. 
tion  of  a  soldier,  respecting  his  settlement.    This  statute  authorises  Examination 
any  justice  of  the  peace  for  the  county,  town   or  place,  where  any  °  ^°   '^'^' 
soldier  shall  be  quartered,  in   case  he  has   either   wife  or  child,  to 
cause  him  to   he  suma)oned    before   him  in  the  place   where   he  is 
quartered,  in  order  to  make  oath  of  the  place  of  his  last  legal  set- 
tlement.     And  such  justice  is  required  to  take  his  examination  in 
writing,  and  give  an   attested  copy  of  the   examination  to  the  per- 
son examined,  to  be  by  him  delivered  to  his  commanding  officer,  in 
order  to  be  produced  when   required;  which  said  examination  and 
allesled  copy  shall   be  at  any  time  admitted   in  evidence  as  to  such 
last  legal  settlement  at   any  general  quarter  sessions  of  the  peace, 
although  the   person  examined    be   dead  or  absent  from  Ihe  king- 
dom. (1) 

The  examination  of  a  single  woman   before  a  magistrate,  under  Examination 
, ,  .  .in  case  of 

the  statute  o  O.  2,  c.  Jl,  (which   enacts,  that,  in  case    any  single  bastardy. 

woman  shall,  in  an  examination  to  be  taken  in  writing  upon  oath 
before  any  justice,  &c.,  charge  any  person  with  having  gotten 
her  with  child,  it  may  be  lawful  for  the  justice  to  issue  his  warrant 
for  the  immediate  apprehension  of  such  person,  &c.)  will  be  evidence 
after  the  woman's  death  against  the  reputed  father,  on  his  appear- 
ance at  the  sessions  to  abide  the  order  of  the  court  according  to 
his  recognizance,  although  he  was  not  present  at  her  examina- 
tion. (2)  (s) 

A  justice  of  the  peace  is  empowered,  hyst.  59  G.  3,  c.  12,  s.  2S,  Examination 
.....  .        .  -  ,       .  .-  ofprisoueri, 

to  take  in  writing  the  examination  ot  any  person   having  a  wile  or  as  to  settle- 
child,    who  is  a  prisoner   in  a  gaol,  or  house  of  correction,   oi  in  "i^"' 

(1)  3G.  4,  c.  13,  s.  70,  and  7  G.  4,  (2)  R.  v.  Ilavenslone,  5  T.  R.  .37:]. 
c.  10.  The  first  mutiny  act  wliich  "  The  examination."  (the  Court  is  re- 
made such  examinations  admissible,  ported  to  have  said,)  "  having  been  tak- 
was  the  55  G.  3,  c.  108,  s.  70.  That  en  before  a  mngistiate,  in  the  course  of  a 
act  did  not  contain  the  clause  as  to  the  judici  I  proceeding,  under  st  6  G.  2, 
original  examination  being  admitted,  c.  .31,  is  certainly  admissible  evidence, 
nor  the  other  clause  which  makes  the  like  the  depositions  tiiken  under  the  stat. 
examination  admissible  in  case  of  the  of  Philip  and  Mary."  (I  &  2  Ph.  & 
examinant's  death,  or  absence  from  the  M  c.  13)  It  is  presumed,  thai  the 
kingdom.  But  the  adiriissibility  of  such  Court  referred  to  the  5ih  seciion  of  that 
evidence  was  determined  in  R.  v.  War-  statute,  respecting  Coroners.  For  ex- 
ley,  6  T.  R.  534,  and  R.  v.  Warminster,  nminations  taken  by  justices  are  not  ad- 
S  Barn.  &  Aid.  121,  and  afterwards  ex-  missible  against  a  prisoner  who  was  not 
pressly  sanctioned  by  the  mutiny  act  of  present. 
»  G.  4,  c.  13,  9.  70. 


(s)  See  Note  685,  p.  914. 

Vol.   I.  4S 


378  0/ Depositions,  Inquisitions,  i^c.         [Ch.  4. 

Examination.  jIjq  custody  of  the  keeper  of  a  gaol  or  liouse  of  correction,  or  in 
the  custody  of  any  peace  officer  under  a  warrant  of  commitment, 
touching  the  place  of  his  or  her  last  legal  settlement;  and  such 
examination  is  to  be  signed  by  the  justice,  and  shall  be  received 
and  admitted  in  evidence  as  to  such  settlement  before  any  justices, 
for  the  purpose  of  any  order  of  removal,  so  long  as  the  person  so 
examined  shall  continue  a  prisoner. 

Depositions  in      Depositions  taken  in  an  ecclesiastical  court,  in  a  cause  within  its 
courts.  jurisdiction,  seem  to  be  admissible  in  evidence  upon  the  same  foot- 

ing as  depositions  in  the  Court  of  Chancery,  the  parties  being  the 
same,  and  having  had  an  opportunity  of  cross-examining  the  de- 
ponents. Chief  Baron  Gilbert  lays  down  the  rule  thus:  (1) 
"  Depositions  taken  in  the  spiritual  court  in  a  cause  relating  to 
lands  cannot  be  read,  because  they  are  no  oaths  at  all,  inasmuch 
as  the  spiritual  courts  have  no  authority  to  take  depositions  relating 
to  lands:  but  it  seems  they  may  be  read,  when  taken  in  a  cause  in 
which  they  have  authority,  as  far  as.  relates  to  that  cause,  inas- 
much as  these  are  lawfid  oaths,  and  a  man  may  be  indicted  for  the 
violation  of  them,  tliough  they  be  not  oaths  in  a  court  of  record." 
It  does  not  appear,  in  any  of  the  cases  above  mentioned,  to  have 
been  thought  essential  to  the  admissibility  of  depositions,  that  they 
should  be  made  in  courts  of  record;  but  the  material  consideration 
was,  whether  they  were  taken  judicially,  and  whether  the  other 
party,  against  whom  they  were  olTered  in  evidence,  had  any  oppor- 
tunity of  cross-examining  the  deponent.  There  are  some  authori- 
ties, which  hold,  that  depositions  of  witnesses  in  an  ecclesiastical 
court  are  not  to  be  admitted  in  courts  of  common  law;  (2)  and  one 
book  of  authority  lays  it  down  as  a  general  rule,  that  depositions, 
taken  in  a  court  not  of  record,  shall  not  be  allowed  in  evidence 
elsev\here.  (3)  However,  the  better  opinion  seems  to  be,  that  such 
depositions  are  admissible  in  evidence,  under  the  limitations  above 
stated,  (t) 

Depositions  Upon   the   principle  above  stated,    Lord    Holt  was  of  opinion, 

missionersof     '"  '^^^  case  of  Breedon  v.  Gill,  (4)  that   depositions   before  com- 


excise. 


(1)  Gilb.  Ev.  60.  (3)  Bull.  N.  P.  242. 

(2)  Earl  of  Sarurn  v-  Sir  B.  Spencer,         (4)   1  Ld.  Raym.  219,  222. 
2  Roll.   Abr.    679,  pi-    6.      Litt.     Rep. 

167.     March,  Rep.  130. 


(0  See  Note  686,  p.  944. 


Sect.  2.]       Of  Depositions,  Inquisitions,  ^e.  379 

missioners  of  excise,  (who  by  the  statute  12  Car.  2,  c.  24,  s.  45,  Examination, 
have  a  power  to  administer  oaths  on  enquiring  into  forfeitures,) 
taken  in."the  presence  of  the  other  party,  and  signed  by  the  wit- 
ness, would  be  admissible  on  an  appeal  from  the  sentence  of  the 
commissioners,  in  case  the  witness  should  be  dead  at  the  time  of 
hearing  the  appeal. 

The  affidavit  of  a  person  may  be  read  against  him,  in  a  suit  in  Affidavit. 
which  he  is  party,  as  an  admission  by  him;  (u)  or  may  be  used 
against  him,  in  a  cause  in  which  he  is  witness,  for  the  purpose  of 
contradicting  his  testimony,  (v)  If  the  affidavit  is  filed  as  matter  of  Filed, 
record,  the  contents  may  be  proved,  in  either  of  the  cases  just  men- 
tioned, by  an  examined  copy,  (as  matters  of  record  are  usually 
proved;)  after  which  there  must  be  some  proof,  to  show  that  the 
contents  of  the  document  are  the  statement  of  the  individual  against 
whom  they  are  tendered  in  evidence.  Proof  that  the  original 
bears  the  handwriting  and  signature  of  that  individual,  will  be  suf- 
ficient for  this  purpose;  or  if  he  has  admitted  that  he  signed  the 
original,  that  would  be  sufficient.  Thus  proved,  the  contents  may 
be  given  in  evidence,  as  an  admission  or  statement;  but  not  as  an 
affidavit,  or  representation  on  the  oath  of  the  individual,  without 
some  additional  positive  proof  of  his  having  been  sworn  to  its  truth. 
If  it  is  tendered  in  evidence  against  a  witness,  and  he  admits  that 
he  swore  to  its  contents,  this  will  be  sufficient  proof  of  the  oath,  for 
the  purpose  of  contradicting  him.  (w) 

If  the  affidavit  has  not  been  filed  on  record,  it  should  be  pro-  Not  filed, 
duced  and  proved  by  competent  evidence  to  be  the  representation 
of  the  individual,  as  in  the  former  case.  If  it  has  been  lost  or 
destroyed,  so  as  not  to  admit  of  being  produced,  there  appears  to  be 
no  objection  against  receiving  secondary  evidence  of  its  contents,  as 
in  other  instances  of  non-existing  documents. 

If  an    affidavit    be   made   in  any   cause,    proof   of  such   cause  Proofofswear- 
depending,  and   that  such    affidavit  was  used  by   the  party,  would 
perhaps  be  sufficient  proof  of  its  being   sworn  even  on  an  indict- 
ment for  perjury,  and  certainly  would  be  evidence  in  a  civil  suit. (I) 

(1)  Bull.  N.  P.  2.S8. 


(tt)  See  Note  687,  p.  944.     (t;)  See  Note  688,  p.  944.     (w)  See  Note  689,  p.  944. 


S80 

Award . 


Jadgments 

inferior 

courts. 


of 


Antrd. 


OJ  Deposiiions,  Inquisitions,  ^c.        [Ch.  4. 

In  an  action  against  the  defendant  in  tlie  Common  Pleas,  for  ma- 
liciously arresting  the  plainiifT  in  a  cause  in  the  same  court,  it  ap- 
peared tliat  the  plaintifl'  had  obtained  a  rule  to  set  aside  the  arrest 
in  that  cause,  and  the  defendant  in  opposing  this  rule  had  made  an 
affidavit,  the  arrest  was  set  aside,  and  the  plaintiff  paid  the  expense 
of  obtaining  his  discharge;  this  affidavit  was  admitted  in  evidence 
against  the  defendant,  without  proof  of  his  signature,  or  of  his  being 
sworn;  and,  in  an  argument  on  a  special  case,  the  objection  taken 
at  the  trial  against  the  admissibility  was  at  once  abandoned  by  the 
defendant's  counsel.  (I)  (a-) 

Judgments  in  a  court  baron,  county  court,  or  hundred  court,  and 
the  judgments  of  any  other  inferior  court  (y)  recognised  by  the 
law  of  the  land,  (2)  are  evidence  (z)  between  the  same  parties,  (a) 
upon  the  same  points  in  issue,  on  matters  within  their  jurisdiction. 
Thus,  in  an  action  of  debt  on  a  judgment  recovered  in  an  inferior 
court,  the  judgment  will  be  evidence  of  the  debt;  but  the  defendant 
may  show,  if  he  can,  that  the  cause  of  action  was  not  within  the 
jurisdiction  of  the  court  below.  (3)  (6) 

An  award,  regularly  made  by  an  arbitrator,  to  whom  matters  in 
difference  are  referred, is  conclusive, in  an  action  at  law,  on  the  parties 
to  the  reference,  upon  all  matters  enquired  into  within  the  submis- 
sion. (4)  (c)  What  has  been  before  said  on  the  subject  of  judgments 
by  a  court  of  concurrent  jurisdiction,  may  be  said  also  of  awards,  that 
they  are,  as  a  plea,  a  bar,  or,  as  evidence,  conclusive  between  the 
same  parlies,  upon  the  same  matter  directly  in  question.  (5)  (J) 
Thus,  in  an  action  of  ejectment,  where  the  defendant  and  the  lessor 
of  the  plaintiff  had  before  referred  to  an  arbitrator  their  respective 
claims  to  the  property  in  question,  the  Court  of  King's  Bench  held, 
that  the  party  had  by  his  agreement  concluded  himself  from  dis- 
puting the  lessor's  title.  (6)  (e)  It  has  been  before  observed,  that 
an  award  is  not  a  bar  to  any  cause  of  action  which  the  one  party 
had  against   the  other   at  the  liine  of  the   reference,  if  it   appear 

(1)  Cameron  v.]  Lighlfoot,  2  Black.  (5)  See  iinte,  p.  321;  and  Camp- 
Rep.  1191.  bell   V.     Tvvenilow,    1    Price,   81;    and 

(2)  Com.  Dig.  tit.  Evidence,  (C.  1.)  R.  v.  Cotton,  3  Campb   444. 

(3)  Herbert  v.  Cook,  reported  in  (6)  Doe,  dem.  Morris  v.  Rosser , 
note  (a),  VVilles,  Rep.  36.  3  Cast,  15. 

(4)  See  ante,  p   334. 


(x)  See  Note  690,  p.  94.3.  (v)  See  Note  691,  p.  945.  (2)  See  Note  692,  p.  946. 
la)  See  Note  693,  p.  972.  (b)  See  Note  694,  p.  987.  (c)  S«e  Note  695,  p.  1025. 
(d)  See  Note  696,  p.  103R.     (e.)  Ssp  Note  697,  p.  1037. 


Sect.  2.]  Of  Depositions,  Inquisitions,  ^c.  381 

that  the  subject  matter  of  the   action  was   not  enquired  into  before  Certificate, 
the  arbitrator.  (1)  (/) 

Certificates   of  conviction  are  made  evidence  in  several   cases,    Certificates. 
by  the  express  provisions  of  the  legislature.     On  the  trial  of  a  pros- 
ecution, for  a  second  offence  in  uttering  counterfeit  money,  a  certi- 
fied transcript  of  a  former  conviction,  by  the  clerk  of  the  assize  or 
clerk  of  the  peace,  containing  in  a  few  words  the  effect  and   tenor  Of  conviction, 
of  the  conviction,  is  sufficient  proof  of  the  former  conviction.  (2) 
On  a  prosecution,    also,  of  a  felon,  for    being  at  large  unlawfully 
before  the  expiration  of  his  term  of  transportation,  a  certified  trans- 
cript of  the   indictment,  of  the  conviction  of  the  felon,  and  of  the 
order  for  transportation,  has   been  made   sufficient   ppiof,  that   the 
person,  there  named,  has  been  before  convicted,    and  ordered    for 
transportation.  (3)  {g) 

The  certificate  of  a  vice-consul  has  been  compared  to  a  foreign  Of  vice-consul, 
judgment.  But  the  vice-consul  is  not,  properly  speaking,  a  judi- 
cial officer;  nor  is  his  certificate  to  be  admitted  as  evidence  of  the 
fact  there  stated.  In  the  case  of  Waldron  v.  Coombe,(4)  the 
Court  of  Common  Pleas  determined,  that  the  certificate  of  a  Brit- 
ish vice-consul  in  a  foreign  country  could  not  be  received  here  as 
evidence  of  the  amount  of  a  sale,  although  by  the  law  of  that 
country  he  was  constituted  general  agent  for  all  absent  owners  of 
goods,  and  was  authorized  and  compelled  to  make  the  sale  in 
question. 

A  certificate   of   the    king,    imder  bis  sign   manual,   has   been  By  the  crown, 
admitted  in   an  old   case,   as   evidence   of  a   fact,    in  a  suit  on  a 
promise  of   marriage;(5)    the   report    states,    that   the   certificate 
was  allowed  the  proof  without  exception.      But   it  is  laid  down   in 
RoUe's    Abridgment,   (6)  "  that  the    king,  as  it  seems,  cannot  be 

(I)  Ravee   v.    Farmer,  4  T.  R.  146,  are  made  evidence,  may  be  seen    in  vol. 

ante,  p.  334.  i.  of  Russell's  Treat,  on  Crimes,  b.  2, 

(2j  St.   15  G.  2,  c.  28,  a.  9.      The  ch.  36. 
St.  34,  35  H.    8,  c.    14,   contains  provi-  (4)   3  Taunt.   162        Roberts  v.  Ed- 

Bions  respecting  the  transmitting  of  certi-  dington,   4  Esp.    N.    P.    C-    88.     R.    v. 

ficates    of    outlawries,    convictions,  and  Vyse,  Forrest,  35. 

attainders,    into  the  court  of  K.  B.,  by         (5)  Abignye   v.    Clifton,    Hob.    Rep. 

clerks  of  assize,   &c.     St.    3  VV.  &    M.  213.     See  3  Woodeson,  Lect.  275. 
c  9,  3.  7,  relates   to   certificates  of  pris-         (6)   2  Roll.  Ab.    686,    (H.)    Art.    1, 

oners  having  hud  benefit  of  clergy.  citing   the  case   of  Abignye  v.    Clifton, 

(3)  St.    6  G.   l,c.  23,  8.  6.     Several  contra, 
other  cases,  in  which  similar  transcripts 


(/  )  See  Note  69vS,  p.  1040.     (g)  See  Note  699,  p!  1042. 


382 


Of  Depositions^  Inquisitions,  ^c.         [Ch.  4. 


Certificate. 


witness  in  a  cause,  by  letters  under  his  sign  manual."  And  Lord 
Ch.  Justice  Willes,  in  his  judgment  in  the  case  of  Omichund  v. 
Barker,  (1)  says,  referring  to  this  case  in  Hobart,  "  Even  the  cer- 
tificate of  the  king,  under  his  sign  manual,  of  a  matter  of  fact,  has 
been  always  refused,  except  in  one  old  case  in  Chancery." 


it  war. 


Of  minister.  A  certificate  under  the  seal  of  a  minister  abroad,  as  to  the  fact 

of  a  marriage  having  been  solemnized  before  him,  was  admitted 
also  in  an  old  case;  (2)  (h)  but  the  admissibility  of  such  evidence 
has  been  questioned;  (3)  and   it  cannot   be  doubted,  but  that  the 

Of  secretary  evidence  would  now  be  rejected.  A  certificate  from  the  secretary 
at  war,  as  to  the  nature  of  the  station  of  a  sergeant  in  the  army, 
is  said  to  have  been  admitted,  though  opposed,  in  the  case  of  Lloyd 
V.  Woodal;  (4)  but  for  what  reason,  or  upon  what  principle  is  not 
stated,  (i)  The  general  rule  is,  that  our  law  never  allows  a  certifi- 
cate of  a  mere  matter  of  fact,  not  coupled  with  any  matter  of  law, 
to  be  admitted  as  evidence.  (5)  (j) 


Of  justices. 


Of  enrolment. 


Protest. 


A  certificate  of  justices,  certifying  that  a  highway,  which  is  the 
subject  of  an  indictment,  is  in  a  state  of  repair,  is  admitted,  in  com- 
mon practice,  as  an  adjudication  of  the  state  of  repair,  after  a  plea 
of  guilty  pleaded  by  the  parish.  (6)  (k)  A  certificate  of  the  enrol- 
ment of  a  fine  is  evidence  of  the  enrolment,  for  the  reason  mentioned 
In  the  foUovving  chapter.  A  protest,  as  to  the  presentment  and  non- 
acceptance  of  a  foreign  bill  of  exchange,  attested  by  a  notary 
public,  is  evidence  of  those  facts,  in  an  action  upon  the  bill:  this  is 
a  relaxation  of  the  strict  rule,  from  a  principle  of  general  con- 
venience. (7)  (l)  A  certificate  of  the  discharge  of  an  insolvent 
debtor  by  the  quarter  sessions,  under  the  insolvent  act  of2  G.  2,  c. 
20, has  been  admitted  as  evidence  of  the  fact  of  his  discharge.  (8)  (m) 

(1)  Willes,  Rep.  550.  (7)   Willes,  550. 

(2)  Alsop  V.  Bowtrell,  Cro.  Jac.  541.  (8J  Gillum    v.    Stirrup,    Rep.    temp. 

(3)  Willes,  Rep.  549.  Hard.    144.     Action  of  debt   on    bond; 

(4)  1  Black.  Rep.  29.  discharge     pleaded     in      bar.       As     to 

(5)  By  Willes,  C.  J.,   Willes's  Rep.     proof    of    discharge    of    an     insolvent 
550.  debtor,  vide  supra,  p.  2t9. 

(6)  6  T.  R.  630,  635. 


(A)  See  Note  700,  p.  1043    (i)  See  Note  701,  p.  1044.  (j)  See  Note  702,  p.  1044. 
(k)  See  Note  703,  p.  1051.  {I)  See  Note  704,  p.  1052.  (?«)  See  Note  705,  p.  1054. 


C  h .  5.  ]  Of  the  Proof  of  Records,  ^c.  383 

CHAP.    V. 

Of  the  Proof  of  Records  and  Judicial  Proceedings. 

The  admissibility  of  judicial  proceedings  having  been  treated  of 
in  the  preceding  chapters,  it  remains  to  consider,  how  their  con- 
tents are  to  be  regularly  proved,  so  as  to  render  them  producible 
in  evidence. 

Records  are,  for  security,  preserved  in  public  depositories,  and,  as  Records, 
ihey  cannot  be  removed  from  place  to  place  to  serve  a  private  pur- 
pose, examined   copies  are   admitted    as  the   best   producible  evi- 
dence. (1) 

Public  acts  of  parliament  are  presumed  by  the  hw  to  be  known  Public  stat- 
to  every  individual.  Printed  copies,  therefore,  of  public  acts,  and 
the  printed  statute-books,  are  resorted  to  by  courts  of  justice,  not 
strictly  as  evidence,  but  as  serving  to  refresh  the  memory,  (2)(n) 
And  by  the  statute  41  G.  3,  c.  90,  s.  9,  made  for  better  and  more 
effectual  proof  of  the  statute-law  of  this  country  in  Ireland,  and 
of  the  Irish  statute-law  in  Great  Britain,  it  is  enacted,  that  copies 
of  the  statutes  of  Great  Britain  and  Ireland  prior  to  the  Union, 
printed  by  the  printer  duly  authorized,  shall  be  received  as  con- 
clusive evidence  of  the  several  statutes  in  the  courts  of  either 
kingdom. 

In  some  acts  of  parliament,  not  relating  to  the  kingdom  at 
large,  a  special  clause  is  often  inserted,  declaring  them  to  be  pub- 
lic acts.  Such  acts  are  to  be  considered  on  the  same  footing,  and 
of  the  same  authority,  in  courts  of  justice,  as  those  above  mention- 
ed; and  proof  of  the  contents  will  be  as  unnecessary  in  this  case,  as 
where  a  statute  is  public  without  the  aid  of  such  special  clause,  (o) 

A  clause  is   also   frequently  inserted   in  some   private  acts,  pro-  P"vate  acts, 
viding  that  they  shall   be  printed    by  the  king's   printer,  and  that 

(1)  Leighton  v.  Leighton,  1  Str.  210.         (2)  Gilb.  Ev.  8. 
Vide  supra,  p.  317. 


(71)  See  Note  706,  p.  1055.     (o)  See  Note  70T,  p.  1056. 


384 


Of  the  Proof  of  Records 


[Ch.  6. 


a  copy,  so  printed,  shall  be  admitted  as  evidence  of  the  act.  In 
such  cases,  a  copy,  purporting  to  be  printed  by  ihe  king's  printer, 
will  be  admissible  in  evidence. 

"When  a  private  act  of  parliament,  not  containing  such  a  clause, 
is  required  in  evidence,  the  regular  proof  if  by  an  examined  copy, 
compared  with  the  original  in  the  parliament-office  at  Westmin- 
ster. Even  in  the  case  of  a  private  statute,  however,  if  one  of  the 
parties  to  the  suit  has  done  an  act  under  the  statute,  against 
which  act  the  other  party  appeals,  and  the  regularity  of  which  pro- 
ceeding is  the  question  to  be  tried,  there  the  appellant  will  not  be 
obliged  to  produce  an  examined  copy,  but  a  common  printed  copy 
will  be  sufficient.  (1)  (p) 


Copy  of 
record. 


Copies  of  records  in  courts  of  justice  are  of  two  kinds;  under 
seal,  and  not  under  seal.  Those  under  seal  are  called  exemplifi- 
cations, and  are  of  higher  credit  than  anj  sworn  copy:  for  "  the 
courts  of  justice,  that  put  their  seal  to  the  copy,  are  supposed  more 
capable  than  a  common  person  to  examine,  and  more  exact  and 
critical  in  their  examination.  (2)  These  exemplifications  are  of 
two  kinds;  under  the  great  seal  of  Chancery,  or  under  the  seal  of 
sonie  other  court.  (3) 


Copy  under 
seal. 


1.  The  practice  is  not  to  exemplify  a  record  under  the  great 
seal,  unless  it  be  either  a  record  of  the  Court  of  Chancery,  or  be 
sent  from  some  other  court  into  Chancery,  the  centre  of  all  courts, 
by  writ  of  certiorari.  But  in  either  of  these  cases  a  copy  may  be 
obtained,  under  the  attestation  of  the  great  seal.  (4) 


Record  in 
issue. 


If  the  record  of  a  court  is  put  in  issue  by  a  proceeding  in  the 
same  court,  the  record  itself  is  inspected  by  the  Judges,  {q)  But 
when  the  record,  denied  by  the  issue,  is  in  a  court  of  superior  or 
concurrent  jurisdiction,  the  trial  is  then  by  the  tenor  of  the  rec- 
ord, which  may  be   obtained   by   certiorari  and  mittimus  out  of 


(I)  R  V.  Shaw,  12  East,  479.  Ap- 
peal against  a  rate,  made  by  the  re- 
spondent under  a  private  act.  In  this 
case,  as  Mr.  Justice  Le  Blanc  observed, 
the  respondent  ought  to  begin,  by  show- 
ing th.it  he  had  a  right  to  make  the  rate 
under  the  act. 


(2)  Gilb.  Ev.  11,  12. 

(3)  Glib.  Et.  12. 

(4)  3  Inst.  173.     Gilb.  Ev.  12.    Bui 
N.  P.  226 


ip)  See  Note  70S,  p.  1066.     {q)  See  Note  709,  p.  1057. 


Ch.  5. J  and  Judicial  Proceedings.  ^85 

Chancery,  (1)  a  method  adopted  for  the  purpose  of  communicating 
evidence  of  records  from  one  superior  court  to  another,  without  the 
inconvenience  of  removing  tlie  originals,  (r)  If  the  record  of  a0 
inferior  court  is  disputed  in  a  suit  before  a  higher  tribunal,  the  cer- 
tiorari may  be  issued  out  of  the  superior  court,  as  well  as  from  the 
Court  of  Chancery.  (,2)  And  in  pursuance  of  this  writ,  where  the 
superior  court  sends  for  the  record  of  an  inferior  court,  not  for  the 
purpose  of  seeing  whether  their  proceedings  are  within  the  limits 
of  their  jurisdiction,  but  merely  to  know  whether  there  be  in  fact 
such  a  record,  it  will  be  sufficient  to  certify  the  tenor,  that  is,  a  lit- 
eral transcript  of  the  record.  (3)  But  where  the  record  itself  is  the 
subject  of  the  proceedings  in  the  superior  court,  the  original  ought 
to  be  returned.  (3)  (s) 

When  records  arc  exemplified,  the  whole,  in  general,  must  be  Exemplifica- 
exemplified,  for  the  construction  is  to  be  taken  from  a  view  of  the 
whole  together:  and  nothing  but  records  can  be  proved  by  an  ex- 
emplification, (i)  Private  deeds,  exemplified  under  the  broad  seal, 
will  not  be  adn^.itted  in  evidence:  for  as  the  deeds  themselves  are 
in  the  custody  of  the  party,  they  ought  to  be  produced,  that  the 
court  may  see,  whether  there  are  any  erasures  or  interlineations.  (4) 

2.  The  second  sort  of  copies  under  seal  are  exemijlifications  of 
the  record  of  a  court  under  its  own  seal;  and  they  also  are  con- 
sidered to  be  of  higher  credit  than  svi'orn  copies,  (m)  The  sea] 
of  the  king,  and  of  the  public  courts  of  justice,  and  of  all  courts  Seals  of 
established  here  by  act  of  Parliament,  are  admitted  in  evidence 
without  extrinsic  proof  of  their  genuineness;  (r)  as,  for  example, 
the  seal  of  the  county  palatine  of  Chester,  (5)  or  of  the  great  ses- 
sions of  Wales,  (6)  or  the  seal  of  the  ecclesiastical  court  on  an  ex- 
emplification of  a  will.  (7)      But  the  seals  of  private  courts,  or  of  a 

(1)  Luttrel  V.  Lea,  Cro.  Car.  297.  Gvvin,  2  Sid.  146.  Tooker  v.  D.  of 
Pitt  V.  Knight,  1  Sannd  98.  Hewson  Beaufort,  Sayer,  297,  where  the  ex- 
V.  Brown,  2  Burr.  1034.  einpliticalion  was    under  the    sea!  of  lh« 

(2)  Butcher    and    Aldwoith's     case,     Court  of  Exchequer. 

Cro.  Eliz.  821.     Guilliam   v.    Hardy,    1  (G)   Dyer,    276,     cited    in     Olive    v. 

Ld    Uaym.  216.*  Gwiii,  2  Sid.    146.      Hardr.  118,    S.    C. 

(3)  Woodcraft    v.    Kinaston,    2  Atk.     Gilb.  Ev.  16. 

317.  (7)     Kempton,     dein.     Boyfield,    v. 

(4)  Bull.  N.  l\  227.  Cross,  Rep.  temp  Hard.  108. 

(5)  Dyer,    276,    cited    in     Olive   v. 

(r)  See  Note  710,  p.  1057.  (s)  See  Note  711,  p.  1057.  «)  See  Nolo  712,  p. 
1058.     (u)  See  Note  71.3,  p.  1059.     (v)  See  Note  714,  p.  1061. 

Vol.   I.  49 


386 


Of  the  Proof  of  Records 


[Ch.  5. 


Seal  of  corpo- 
ration. 


foreign  colonial  court,  (1)  (?o)  or  of  a  corporate' body,  (2)  ought  to 
be  proved  by  a  witness  acquainted  with  their  impression,  (x)  It  is 
not,  however,  necessary  to  prove  the  seal  of  a  corporation  in  the 
same  manner  as  the  seal  of  an  individual,  that  is,  by  producing  a 
witness,  who  saw  the  seal  affixed  to  the  identical  instrument;  but 
when  an  instrument  purports  to  be  under  the  seal  of  a  corporation, 
it  will  be  sufficient  to  show,  that  the  seal  is  the  official  seal  of  the 
corporate  body.  (3)  (y) 


Copy  not  nn-        3_  Copies   of  records,   not   under  seal,   are  also  of  two   kmds; 
der  «eal.  '  .  y     m 

sworn  copies,  and  office  copies. 


Examined 
copy. 


Proof  of  lost 
record. 


Records  are  complete,  as  soon  as  they  arc  delivered  into  court  in 
parchment,  and  theie  fixed  as  the  rolls  of  the  court.  Of  these,  a 
sworn,  that  is,  an  examined  copy,  will  be  sufficient  evidence  for  a 
jury,  unless  the  record  itself  is  in  issue.  But  the  copy  of  a  judg- 
ment, signed  by  the  master,  is  not  evidence,  though  upon  such 
judgment  execution  may  be  taken  out:  for  it  is  not  yet  become 
permanent,  and  is  removeable  from  place  to  place.  (4)  (2) 

Copies  of  records  are  to  be  proved,  as  other  transcripts,  by  a  wit- 
ness, who  has  compared  the  copy,  line  for  line,  with  the  original, 
or  who  has  examined  the  copy,  while  another  person  read  the  ori- 
ginal; (5)  (a)  and  it  ought  to  appear,  that  the  original  came  from 
the  proper  place  of  deposit,  or  out  of  the  hands  of  the  officer  in 
whose  custody  the  records  were  kept.  (6)  (b) 

Where  an  ancient  record  has  been  lost,  a  copy  may  be  read 
without  proving  it  a  true  copy,  (c)  An  unexamined  copy  of  a 
recovery  of  lands  in  ancient  demesne  has  been  received  where 
the  original  was  lost,  and  where  possession  had  gone  for  a  long 
time  according  to  the   recovery.  (7)     And  similar  proof  has  been 

(1)  Henry  V.  Adey,  3  East,  221.  (5)    Reid   v.   Murgison,    1     Campb. 

(2)  Moises  V.  Thornton,  8  T.  R.  470.  Rolf  v.  Dart,  2  Taunt.  52  M'Niel 
307.  V.   Percbard,    1    Esp.    N.      P.    C.    263. 

(3)  8  T.  R.  307.  Chaclvvick  v.  Gyles  v.  Hill,  1  Campb.  47 1,  n. 
Bunriing.  1  Ry.  &  Mo.  N.  P  C.  306.  \(1)  Aduirithwaite  v.  Synge,  1  Star- 
In  VVoodrias  v.  Mason,  1  Esp  N.  P.  C.  kie,  N.  P.  C.  1S3;  4  Campb.  372,  S.  C. 
53,  it  was  held  l)y  Lord  Kenyon  that  (7)  Anony.  case,  Ventr.  257.  Bull, 
the  seal  of  the  city  of  London  proves  N.  P.  228.  Green  v.  Rondc,  1  Mod. 
itself.  117. 

(4)  Bull.  N.  P.  228. 


(w)  See  Note  715,  p.  1062.  (a;)  See  Note  716,  p.  1062.  (y)  See  Note  717, 
p.  1062.  (z)  See  Note  718,  p.  1063.  (a)  See  Note  719,  p.  1065.  (6)  See  Koto 
720,  p.  1065.     (c)  See  Note  721,  p-  1066. 


Ch.  6.]  and  Judicial  Proceedings.  387 

allowed  of  tho  decree  in  tlie  time  of  Henry  the  Eighth  for  lithe  in 
London,  that  decree  having  been  lost.  (I)  In  such  cases,  says  Ch. 
B.  Gilbert,  the  instrument  must  be  according  to  the  rule  of  the  civil 
law,  velustatc  tcmporis  aut  jndiciariA  cognitione  rohoratum.  {2)(d) 

A  lost  record  may  be  proved  by  other  competent  evidence  be- 
sides a  copy.  Lord  Holt  said,  in  the  case  of  Thurston  v.  Slat- 
ford,  (3)  he  remembered  a  case  where  the  utjiversity  of  Oxford  en- 
titled themselves  to  a  presentation  by  a  conviction  of  the  Earl  of 
Shrewsbury  for  recusancy,  and  upon  giving  some  evidence  tl.'at 
the  record  was  lost,  the  university  was  permitted  to  prove  the  ef- 
fect of  it  by  other  evidence,  (e) 

An   office   copy  is,  in   the   same  court,  and    in  the  same  cause.  Office  copies, 
equivalent  to  a  record;  but  in   another  court,  or  in   another  cause 
in  the  same  coui't,  the  copy  must  be  provwd.  (4)(/) 

A  disti\iction   is  to  be    made  between  a   cony  authenticated   hy^^^^^^^^', 

'  *'  •'  cer  autrionzed 

a   person   trusted  for   that   purpose,  and    a  copy  given  out   by  an 
officer  of  the   court,  who   is  not   trusted   for  that  purpose;  in  the. 
former  case,  the  copy  is  admissible  in  evidence,  without  proof  of 
its   having   been    actually  examined,  for    the    law   will   trust  such 
officer,  as  far  as  he   acts  under   its  authority;  but   the  copy  is  not 
admissible  in   the   latter  case.  (5) (^)      The  chirograph   of  a  fine,  Chirograph. 
for  example,  is   evidence  of  the    fine,  the   chirographer  being  ap- 
pointed to  give  out  copies  of  the  agreements  between  the  parties, 
which  are  entered  of  record.  (6)     An  indorsement  by  the  proper 
officer  on  a  deed  of  bargain  and  sale,  enrolled  according  to  the  Enrolment, 
form  of  the   statute    27    H.    8,  c.    16,  is    evidence  of  the  enrol- 
ment: (7)     and  an  indorsement    of    the  date    of  enrolment,     by 
the    clerk    of  the    enrolments,  is    part    of  the   record,    and    con- 
clusive as    to    the    date.  (8)(/i)      So,  where  it   became  necessary 

(1)  Ventr.    257.     Knight   v.  Dauler,         (5)  Bull.  N.  P.  229. 

Hardr.      323.       Thurston    v.    Slatford,  (6)  Gilb.    Ev.    21.     2  Starlue,  N.    P. 

1  Salk.    284,  by    Holt,  C.    .T.     Bull.  N.  C.  13. 

P.  228.     Macdowgal   v.    Young,  1    Ry.  (7)  By   Buller,   J.    in    Kinnersley    v. 

&  Mo.  393.  Orpe,  1  Doug.  56. 

(2)  Gilb.  Ev.  19.  (8)  The    King   in   aid     of    Reed    v. 

(3)  1  Salk.  284.  Hopper,  3    Price,  495.     The  same   rule 

(4)  By    Lord   Mansfield,     in    Denn,  with  respect   to    the   date   of  tho   enrol- 
dem.  Lucas  V.    Fulford,    2    Burr.    1180,  ment   of  a   memorial  of  annuity-deeds; 
1181;    and    see    2   Starkie,    N.    P.    C.  Carrick  v.  Williams,  3  Taunt.  540. 
13,  14. 

id)  See  Note  722,  p.  1066.     (e)  See  Note  723,  p.  1067.     (/)  See  Note  724,  p. 
1068.    (g)  See  Note  725,  p.  1069.     (h)  See  Note  726,  p.  1069. 


383 


Of  the  Proof  of  Records 


[Ch.  5. 


for  the  plaintiff  to  show,  in  proof  of  his  title,  that  a  certain  lease 
had  been  enrolled  with  the  auditor  of  the  Duchy  of  Lancaster,  the 
Court  of  King's  Bench  held,  that  a  mcniorandum  of  enrolment,  on 
the  margin  of  the  lease,  signed  "  A.  B.  auditor,"  was  sufticient 
proof  of  the  enrolment.  (I)* 

Rale  of  court,  A  rule  of  court,  under  the  hand  of  the  proper  officer,  is  itself  an 
original,  and  may  be  given  in  evidence  in  a  legal  proceeding  in 
that  court,  without  being  proved  a  true  copy.  (2)  (i)  So,  in  a  case 
where  a  witness,  being  about  to  leave  the  country,  had  been  exam- 
ined at  a  Judge's  chambers  upon  interrogatories,  a  copy  of  his  de- 
position, delivered  out  by  the  clerk  of  the  Judge,  and  signed  by  the 
Judge,  has  been  admitted  in  evidence,  without  proof  of  its  being 
examined  and  compared  with  the  original  deposition.  (3) 


Copy  by  offi- 
cer unanthor- 
ized 


Jndgnient 


Enrol  mert. 
Deposition*. 


Where  the  officer  of  the  court  is  only  entrusted  with  the  custody 
of  records,  and  is  not  authorised  to  make  out  a  copy,  he  has  no 
more  authority  for  that  purpose  than  a  common  person;  (J)  and 
the  copy  must  be  regularly  proved  in  a  strict  and  regular  mode. 
A  copy  of  a  judgment,  though  purporting  to  be  examined  by  a 
clerk  of  the  Treasury,  is  not  admissible,  without  proof  of  its  having 
been  examined;  because  it  is  no  part  of  the  necessary  office  of  the 
clerk  to  deliver  a  copy;  he  is  only  entrusted  to  keep  the  records  for 
the  benefit  of  public  perusal,  and  not  to  make  out  copies  of  them.  (4) 
If  a  deed  enrolled  be  lost,  a  copy  of  the  enrolment,  made  out  by  the 
clerk  of  the  peace,  but  not  proved  to  be  examined,  is  not  admissi- 
ble. (5)  The  office  copies  of  depositions,  taken  in  Chancery,  though 
they  are  evidence  in  the  Court  of  Chancery,  where  officers  are 
entrusted  for  that  purpose,  will  not  be  admitted  in  courts  of  com- 
mon law,  without  examination  with    the  roll.  (6)       And    where 


(1)  Kinnersley  v.  Orpe,  1  Doug.  56. 

(2)  Selby    v.    Harris,  1    Ld.    Raym. 
745.     Bull.  N.  P.  229. 

(3)  Duncan  v.  Scott,  1  Campb.  101. 


(4)  Bull.  N.  P.  229. 

(5)  Ibid. 

(6)  Giib.  Ev.  21.     Bull.    N.    P.  229. 
2  Stavkie,  N.  P.  C.  1.3. 


*  An  examined  copy  of  the  memorial  of  an  assignment  of  a  judgment  (the 
memorial  being  required  by  act  of  parliament)  is  evidence  of  the  fact  of  as- 
signment. And  an  examined  copy  of  the  memorial  of  the  registry  of  a  deed, 
is  e%idence  of  the  fact  of  the  registry.  Hobhouse  v.  Hamilton,  1  Schoal.  & 
Lef  207. 


(t)  See  Note  727,  p.  1069.     {j)  Sec  Note  72S,  p.  1070. 


Ch.  5.  j  and  Judicial  Proceedings.  389 

a  fine  is  to  be  proved   with   proclamations,  as  it   must   be  to  bar  a  Proclnma- 
stranger,  the   proclamations    ought  to  be  examined   with    the  roll; 
for  thou°-h  the  chirographer  is  authorised  to  make  out  copies  of  the 
fine  itself,  he  is  not  appointed  to  copy  the  proclamations.  (I) 

When  a  verdict  is  offered  in  evidence,  as  the  opinion  of  a  jury  Verdict, 
on  certain   points  in   issue,  it  will  be  necessary   also  to  produce  a 
copy  of  the  judgment  founded   upon  the  verdict.      The  production 
of  the    postea   alone  is  not  sufficient;  for  it  may    happen  that  the  Po^tee. 
judgment  was   arrested,  or   a  new  trial   granted.  (2)  (fc)      But  this 
rule  will  not  apply  to  the  case  of  a  verdict  on  an  issue  directed  out  Issua. 
of  Chancery,  as  it  is  not  usual   to   enter  up  judgment   in  such  a 
case;  and  here,  therefore,  the  decree  of  the  Court  must  be  shown, 
which    will  be    sufficient  proof,    that  the  verdict  was  satisfactory, 
and  stands  in  force.  (3) 

Though  the  nisiprius  record  with  the  postea  indorsed,  is  not  gen-  ^Jf^^^""' 
erally  evidence  of  the  verdict,  it  is  good  and  proper  evidence,  that 
the  cause  came  on  to  be  tried.  (4)  (l)  And,  in  an  action  by  the 
plaintiff,  to  recover  a  moiety  of  the  money  paid  by  him  under  a 
verdict,  which  a  third  person  had  recovered  in  a  suit  against 
him  and  the  defendant,  as  co-defendants,  the  nisi  jjrius  record, 
with  the  postea  indorsed,  will  be  evidence  of  the  verdict  and 
damages  in  the  former  suit,  without  proof  of  the  judgment.  (5)  (m) 
In  the  case  just  cited,  of  Fisher  v.  Kitchingman,  Willes,  C.  J. 
doubted,  whether  the  associate  was  the  proper  person  to  pro- 
duce the  postea  in  evidence;  because,  by  several  rules  of  court, 
it  ought  to  be  returned  into  court  to  the  proper  officer,  within 
the  four  days  of  the  next  term;  but,  on  the  prolhonota- 
ry's    informing    the    court,   that    scarcely     one    postea  in  a  hun- 

(1)  Gilb.  Ev-  21.  Allen's  case,  (5)  Foster  v.- Compton,  2  Starkie, 
Bull.  N.  P.  229.  3  Taunt.  166.  Doe,  N.  P.  C.  365.  By  Tenterden,  C.  J. 
dem.  Hatch  v.  Biuck,  6  Taunt.  48(5,  The  postea,  in  this  case,  with  the 
487,  S.  P.  Master's  allocalure     indorsed    upon     it, 

(2)  Bull.  N.  P.  234.  Fisher  v.  Kit-  was  offered  also  as  evidence  of  the 
chingman,  Willes,  367.  Garland  v.  costs:  the  Lord  Ch.  Justice  douliled 
Scooncs,  2  Esp.    N.  P.    C.  646,     contra,  whether    this     was     sufficient    proof    of 

(3)  Montgomerie  v.  Clarke,  at  the  the  costs.  The  plaintiff,  however. 
Delegates,   17-15.     Bull.  N.  P.  234.  was   allowed    to    take  a    verdict  for  the 

(4)  Pitton  V.  Walter,  1  Str.  !61.  whole  demand,  subject  to  be  reduced 
Fisher  v.  Kitchingman,  Willes,  36S.  afterwards,  if  the  court  should  think  it 
R.  V.  Page,    2  Esp.    N.    P-    C.    649,  n.  right. 

6  Esp.  N.  P.  C.  S3,  S.  C. 


(fe)  See  Note  729,  p.  1070.  (/)  S«e  Note  7.^0,  p.  1071    (/?))  See  Note  731 ,  p   1071. 


890  Of  the  Proof  of  Records  [Ch.  5. 

died  was  so  returned,  he  was  of  oj)inion,  ihat  this  objection  was  not 
of  sufficient  weight  to  set  aside  the  verdict. 

Judgment.  The  final  judgment  of  a  court  is  proved  by  an  examined   copy 

of  the  judgment,  entered  of  record  on  the  judgment-roll,  which  is 
filed  in  the  treasury  of  the  court.  It  will  not  be  regularly  proved 
by  the  juiigment-book  of  the  court;  although  the  record  of  the 
judgment-roll  may  not  have  been  made  up,  and  though  the  par- 
ty interested  in  the  proof  of  such  judgment,  was  not  a  party  to 
the  suit,  in  which  the  judgment  was  obtained.  (l)(n) 

Writif.  When  a  writ  is  only  inducement  to  the  action,  the  fact  of  takii.g 

out  the  writ  may  be  proved  without  a  copy,  because  possibly  the 
writ  might  not  have  been  returned,  and  then  it  is  not  a  record,  (o) 
But  where  ths  writ  itself  is  the  gist  of  the  action,  there  ought  to 
be  a  copy  from  the  record,  as  the  best  proof  of  which  the  nature  of 
the  case  is  capable.  (2)  (p)  If  it  be  necessary  to  prove,  that  a  writ 
issued  in  a  particular  cause,  it  will  not  be  sufficient  to  prove  the 
prcBcipe  by  the  filazer's  book,  and  after  proof  of  notice  to  produce 
the  original,  to  give  in  evidence  a  copy  of  the  writ;  but  a  proper 
search  must  be  proved  to  have  been  made  at  the  Treasury  for  the 
original  writ,  before  secondary  evidence  can  be  given.(3)(<j')  An 
examined   copy  of  the  judgment-roll,  containing  tlie  award   of  an 

Elegit.  elegit  and  return  of  the  inquisition,  is  evidence,  in  an  action  for  use 

and  occupation,  of  the  title  of  the  plaintiff,  who  claims  under  the 
elegit,  without  proving  a  copy  of  the  elegit  and  of  llie  inquisi- 
tion; (4)(r)  the  judgment-roll  is  absolute  proof  of  all  the  proceed- 
ings, which  it  sets  forth,  (s) 

t^■   ■  r   ■  If  an    action    of  trespass,    for    taking    goods    in    execution,    is 

fieri  lacias.  '  . 

brought  by  the  party,  against  whom  the  writ  o{  jier  a  facias  issued, 
it  will  be  sufficient  for  ihe  officer  to  give  the  writ  in  evidence, 
without  showing  a  copy  of  tlie  judgment,  {t)      But   if  the  plaintiff 

(1)  Ayrey    v.     Davenport,    2    New  (2)  Gilb.  Ev.  34.     Bull.  N.  P.    234. 

Rep.     474.       The    judgment  booU    was  (3)  Edmonstone    v.    Plaisted,  4    Esp. 

produced    in    this  case  by  the   officer    of  N.  P.  C.  160. 

the  court,  on    the    part    of    the    defend-  (4)   RamsboUom      v.      Bucldiurst,    2 

ant,  and  notice  had    not    been   given    to  Mauio  Hi.  Seiw.  565. 
the    plaintiff  to  produce    the  judgment- 
paper. 


(7j)  See  Note  73.^  p.  1072.  (o)  Sec  Note  733,  p.  1076.  (p)  See  Note  734,  i>. 
1076.  (9)  See  Note  735,  p.  1076.  (r)  See  Note  736,  p.  1077.  (s)  See  Note 
737,  p.  1078.     (0  See  Note  738,  p.  1078. 


Ch.  5.]  and  Judicial  Proceedings.  391 

is  not  the  parly,  against  whom  the  writ  issued,  and  claims  the 
goods  by  a  prior  execution  or  sale,  the  officer,  in  order  to  prove  the 
sale  or  the  execution  fraudulent,  must  produce  not  only  the  writ, 
but  also  a  copy  of  the  judgment.  In  the  first  case,  he  will  justify 
himself,  by  proving  that  he  took  the  goods  in  obedience  to  a  writ 
issued  against  the  plaintiff;  but,  in  the  other  case,  the  goods  do 
not  prima  facie  belong  to  the  party  against  whom  the  writ  issued, 
and  therefore  the  officer  is  not  justified  by  the  writ  in  taking  them, 
unless  he  can  bring  the  case  within  the  statute  13  Eliz.  c.  5,  against 
fraudulent  alienations,  &c.  for  which  purpose  it  will  be  necessary 
to  show  a  judgment.  (l)(w) 

The  return  o(  the  sheriff  upon  a  writ,  which  has  been  duly  re-  Sheriff's  re- 
turned and  filed,  (v)  is  prima  facie  evidence  of  the  fact  there  stated, 
when  that  fact  comes  incidentally  into  question,  even  in  an  action 
between  third  persons.  If  the  sheriff  return  a  rescue,  the  court 
above  to  which  the  return  was  made,  would  give  it  such  credit, 
as  to  issue  an  attachment  in  the  first  instance;  though,  upon  an 
indictment  for  a  rescue,  the  defendant  might  show,  that  the  re- 
turn was  false.  (2)  iVnd  so  in  an  action  for  maliciously  suing  out 
an  alias  fieri  facias^  after  a  sufficient  execution  under  the  first  _/ien 
facias^  the  Court  of  King's  Bench  held,  that  the  sheriff's  return  an- 
nexed to  the  writs  (in  which  he  stated,  that  he  had  forborne  to 
sell  under  the  first,  and  had  sold  under  the  second  writ,  by  the  re- 
quest and  with  the  consent  of  the  plaintiff,)  had  been  properly  ad- 
mitted at  the  trial  as  evidence  of  that  fact,  in  support  of  a  plea  of 
licence  pleaded  by  the  defendant;  for,  as  the  Court  said,  faith 
ought  to  be  given  to  the  official  act  of  a  public  officer  like  the  sher- 
iff, even  where  third  persons  are  concerned.  (3)  But  though  the 
sheriff's  return  is  prima  facie  evidence  that  he  has  levied,  it  affords 
no  proof,  that  he  has  paid  over  the  money  to  the  judgment-credi- 
tor, so  as  to  charge  him  in  an  action  with  the  receipt.  (4)  (iv) 

(1)  Lake  V.  Billers,  1  Ld.  Ray.  733.  cher,  Cowp.  63.  M'Neilv.  Perchard, 
Martin  v.  Podgcr,  2  BlacU.  Rep.  701.  1  Esp.  N.  P.  C  263.  Jones  v.  Wood, 
Bull.  N.  P.  231,  a  3  Camph.    229.       Fairlie    v.  Birch,    3 

(2)  il.     V.     Klkius,    4    Burr.     2129.  Campb.  397. 

There   are  several   cases,   in  which  the  (3)   Gj'fibrd   v.  Woodgate,    11    East, 

indorsement    on  tlie   writ  has    been    ad-  297. 

initlcd    as  evidence  against  the  sheriff,  (4)  Calor  v.  StoUes,  1  Maule  &  Sel. 

who  makes  the  return.     Blatch  v.  Ar-  599. 

(u)  See  Note  739,  p.  10S2.  (t>)  See  Note  740,  p.  1083.  (w)  See  Note  741,  p.  1083. 


>92 


Of  the  Proof  of  Records 


[Ch.  6. 


InqoisltioD. 


Common  re- 
coTeries. 


Decree  in 
Chancery. 


When  an  inquisition  is  oflered  in  evidence,  the  commission,  un- 
der which  it  was  taken,  ought  regularly  to  be  proved,  or  shown  to 
be  lost.  But  in  cases  of  more  general  concern,  such  as  the  minis- 
ter's return  to  the  commission  in  the  reign  of  Hen.  8,  for  enquiring 
into  the  value  of  livings,  a  copy  of  the  whole  record  need  not  be 
taken,  and  the  commission  is  of  such  public  notoriety  as  not  to 
require  any  proof.  (l)(a^) 

It  is  enacted  by  statute  14  G.  2,  c.  20,  s.  4,  (made  for  the  pur- 
pose of  protecting  purchasers,  in  cases  where  recoveries  have  not 
been  entered  on  record,)  that,  where  any  person  has  purchased 
any  estate,  whereof  a  recovery  was  necessary  to  be  suffered  in  or- 
der to  complete  the  title,  such  person,  and  all  claiming  under  him, 
having  been  in  possession  of  the  purchased  estate  from  the  time  of 
the  purchase,  may,  after  the  end  of  twenty  years,  produce  in  evi- 
dence the  deed  making  a  tenant  to  the  writ  of  entry,  or  other  writ 
for  suffering  a  common  recovery  and  declaring  the  uses:  and  the 
deed  so  produced,  execution  thereof  being  duly  proved,  shall  in  all 
courts  be  deemed  good  and  sufficient  evidence  for  the  purchaser, 
and  all  claiming  under  him,  that  the  recovery  was  duly  suffered 
and  perfected  according  to  the  purport  of  the  deed,  in  case  the 
record  of  recovery  cannot  be  found,  or  should  not  appear  to  be  reg- 
ularly entered.  And,  by  the  fifth  section  of  the  same  act,  every 
common  recovery  shall  aftfir  the  expiration  of  twenty  years  from 
the  time  of  suffering  thereof,  be  deemed  valid  to  all  purposes,  if  it 
appear  on  the  face  of  the  recovery,  that  there  was  a  tenant  to 
the  writ,  and  if  the  persons,  joining  in  the  recovery,  had  a  sufli- 
cient  estate,  to  suffer  the  same;  notwithstanding  the  deed,  for 
making  the  tenant  to  such  writ,  should  be  lost  or  should  not 
appear. 

A  decree  in  the  Court  of  Chancery  may  be  proved  by  an  ex- 
emplification under  the  seal  of  the  Court;  or  by  a  sworn  copy; 
or  by  a  decretal  order  in  paper,  with  proof  of  the  bill  and  an- 
swer. (2)  [y)  But  it  has  been  held,  that  the  bill  and  answer  need 
not  be  proved,  if  they  are  recited  in  the  decretal  order.  (3)(z)    And 

(1)  Bull.  N.  P.  228.  Hardcastle  v.  (3)  By  Trevor,  C.  J.  in  Wheeler  v. 
Sclater,  2  Gvvill.  787.  Lowth,  cited  Com.   Dig.    ib.  1  Keb.  21, 

(2)  Trowel    v.    Caslle,    1    K.  b.     21.  contra. 
Com.  Dig.  Ev.  (C.  1,)  p.  94. 


(x)  See  Note  742,  p.  1097.  {y)  See  Note  743,  p.  1097.  (z)  See  Note  744,  p.  1097. 


Ch.  5.]  and  Judicial  Proceedings.  393 

it  is  said  in  a  book  of  authority,  (1)  that  if  a  party  wants  to  avail 
himself  of  the  decree  only,  and  not  of  the  answer,  the  decree,  un- 
der the  seal  of  the  Court  and  enrolled,  may  be  given  in  evidence 
without  producing  the  bill  and  answer,  and  the  opposite  party  will 
be  at  liberty  to  show,  that  the  point  in  issue  was  not  the  same  as 
the  present  issue,  (a)  However,  the  rule,  generally  laid  down, 
seems  to  be,  that,  where  a  party  intends  to  avail  himself  of  the 
contents  of  a  decree,  and  not  merely  to  prove  an  extrinsic  collate- 
ral fact,  (as,  that  a  decree  was  made  by  the  Court,)  he  ought  reg- 
ularly to  give  in  evidence  the  proceedings  upon  which  the  decree 
is  founded,  (b)  "  The  whole  record,"  says  Ch.  B.  Comyns, 
"  which  concerns  the  matter  in  question,  ought  to  be  produced. "(2) 
So,  a  sentence  in  the  Admiralty  Court  may  be  evidence,  upon  the 
libel  and  answer  produced:  (c)  and  a  judgment  in  a  court-baron> 
or  other  inferior  court,  with  proof  of  the  proceedings  in  which  the 
judgment  was  given."  (3) 

If  the  fact  to  be  shown,  were  merely,  that  a  decree  has  been 
made  in  the  Court  of  Chancery,  or  that  a  decree,  made  there,  has 
been  reversed  on  appeal,  proof  of  the  previous  proceedings  will  not 
be  necessary.  (4)  (d)  And  in  the  case  of  an  ancient  decree,  if  the  Ancient  de- 
bill  and  answer  cannot  be  found  aft<T  proper  search,  the  decree 
alone  may  be  admitted. 

An  answer  cannot  be  regularly  given  in  evidence  without  proof  Answer. 
of  the  bill;  for  without  the  bill  there  does  not  appear  to  be  a  cause 
depending.  But  if  there  be  proof  by  the  proper  officer,  that  the 
bill  has  been  searched  for  in  the  office,  and  cannot  be  found,  the 
answer  has  been  allowed  to  be  read  without  a  sight  of  the  bill.  (5) 
(e)  As  the  defence  in  Chancery  is  upon  oath,  it  will  be  presumed, 
in  ordinary  cases,  that  the  answer  was  sworn  to  by  the  defendant. 

When  an  answer  is   oflered  in    evidence  as  an  admission  of  the  Asanadmia- 
party  upon  oath,  (6)  (/)  or  when  it  is  used  for  the  purpose  of  contra- 
ct)   Bull.  N.   P.     235,    citing     Lord  (4)  See  Jones  v.    Randall,  Covp.  17. 
Thanet   v.    Piiterson,  K.    B.    East,    12  (5)  Gilb.  Ev.  49. 
G.  2.  (6)   Lady    Dartmouth  v.    Roberls,  16 

(2)  Com.  Dig.  tit.  Evid.  (A.  4.)  p.  85.  East,  334.      Salter  v.  Turner,  2  Campb. 

(3)  Com.  Dig.  tit.  Evid.  (C.  1,)  p.  94.  S7.     3  Campb.  401. 

(o)  See  Note  745,  p.  1098.  (6)  See  Note  746,  p.  1098.  (c)  See  Note  747, 
p.  1098.  (d)  See  Note  748,  p.  1098.  (e)  See  Note  749,  p.  1098.  (/)  See 
Note  750,  p.  1099. 

Vol.  I.  50 


394 

Deposition. 


Of  the  Proof  of  Records 


[Ch.  5, 


Proof  of 
swearing. 


Depositions. 


dieting  a  witness,  (1)  it  will  be  sufficiently  proved  by  an  examined 
copy;  nor  will  it  be  necessary  to  show,  that  there  has  been  any 
decree  in  the  suit.  (2)  Jf  an  examined  copy  is  given  in  evidence, 
some  proof  of  the  identity  of  the  party  will  be  requisite;  and  this 
may  be  supplied  by  extrinsic  proof,  or  by  the  proceedings  them- 
selves. In  one  case,  the  attorney  of  the  party  was  called,  to  prove 
that  the  other  party  had  filed  the  bill  in  equity  against  his  client.  (3) 
In  another  case,  in  which  the  action  was  brought  against  the  de- 
fendant A.  B.  as  adn)inistrator  of  C.  D.,  aod  the  defendant  did  not 
plead,  that  he  was  not  administrator,  it  appeared,  that  the  bill  in 
equity  had  been  also  filed  against  A.  B.  as  administrator  of  C.  D.: 
and  this  was  considered  to  be  sufficient  presunjptive  evidence,  that 
the  answer,  purporting  to  be  made  by  A.  B.  in  that  character,  was 
the  answer  of  the  defendant.  (4)  (^)  Proof  of  the  signature  of  the 
party  in  the  original  aoswer,  by  a  witness  acquainted  with  the 
hand-writing,  who  has  never  inspected  the  original,  will  be  suffi- 
cient, in  such  cases,  to  show  that  it  is  the  answer  of  the  party.  (5) 

Stricter  proof  than  an  examined  copy  is  'required,  on  a  prosecu- 
tion for  perjury  alleged  to  have  been  committed  by  the  defendant 
in  his  ariswer.  Some  evidence  of  the  administration  of  the  oath 
will  there  be  required;  as,  that  a  person,  calling  himself  by  the  de- 
fendant's name,  was  sworn,  and  that  the  signature  on  the  answer, 
which  must  be  produced,  is  his  hand-wiiting;  or  that  the  answer 
is  signed  by  the  defendant,  and  that  the  jurat  purporting  to  have 
been  sworn  before  a  master,  is  attested  by  the  master's  hand-writ- 
ing. (6)  (/t)  This  strictness  of  proof  isrequii-ed  not  only  in  criminal 
proceedings,  as  on  a  trial  for  perjury,  but  also  in  actions  which  are 
in  the  nature  of  a  criminal  proceeding,  as  in  an  action  for  a  mali- 
cious prosecution.  (7) 

With  regard   to  depositions,   the  general   rule  is,    that  they  are 
not   to   be  admitted   in   evidence    without   proof   of   the  bill  amJ 

(1)  Ewer    V.    Ambrose,  4    Barn.    &.  (4)  Henneil  v.  Lyon,  1  Barn.  &  Aid- 
Cress.  25.                                                            J  82. 

(2)  Lady    D;uinioutti  v.    Roberts,  16         (5)    Dartnall  v.  Howard,    1    Ry.    & 
East,  334.  Mo    169. 

(3)  Hodgkinson  v.    VVjllis,  3  Canipb.  (6)   R.  v.  Morris.  2  Burr.  1189.  R.  v. 
401.  Benson,  2  Campb.  50.8. 

(7)    16  East,  840. 


(§■)  See  Note  75',  p.  1099,     (/i)  See  Note  752,  p,  lOPU, 


Ch.  5.]  and  Judicial  Proceedings.  395 

answer;(l)  for,  if  there  do  not  appear  to  be  a  cause  depending,  Deposition. 
the  depositions  are  considered  to  be  mere  vohintnry  affidavits;  and 
tlie  bill  and  answer  ought  to  be  produced,  in  order  to  show  who 
were  the  parlies  to  the  suit,  and  what  tiie  j^^oints  in  issue,  as  depo- 
sitions in  general  are  evidence  only  upon  the  same  points, ^and  be- 
tween the  same  parties,  or  tliose  wiio  claim  under  the  parties.  (2)  (i) 
But   depositions   maybe  read    without   such   antecedent  proof,  if  ^^osi '''"  and 

.  .  ,  ...  1       r       J  -  answer. 

ihey  are  so  ancient,  tbat  no  bill  or  answer  can  be  lorthcoming; 
formerly  it  was  not  the  practice  to  enrol  bills  and  answers.  (3) (J) 
And  if  the  defendant  is  in  contempt,  or  has  had  an  opportunity  of 
cross-examining^  which  he  chose  to  forego,  the  depositions  may 
then  be  read,  after  proving  the  bill,  aJ(ho.uglj  no  answer  lias  been 
put  in.  (4) 

Depositions  are  evidence,  as  an  admission,  against  ti  party  to  the 
suit — or  fcr  *the  purpose  of  contradi-cting  a  witness — without  proof 
of  the  bill  and  ansu'er;  (fe)  but  some  proof  of  tlie  idenliiy  of  the 
person  will  be  necessary. 

Depositions   takers    on    interrogatories,    under  a  commission  of  On  interroga- 
....  .  tones, 

modern  date,  are  not  adn^issible  without  the  production  of  tliecoin- 

snission,  under  the  authority  of  which  the  deposiiions  were  taken: 
if  the  depositions  are  of  a  long  standing,  so  that  the  commission 
«may  be  presumed  to  have  been  lost,  they  are  evidence  by  them- 
ssives:  in  either  case,  whether  the  depositions  are  of  a  recent  or  an- 
cient date,  there  is  no  occasion  to  produce  the  bill  and  answei-.  (5)(Z) 

Where    the    Court    of  Chancery,  on   directing   a    trial  at  law,  Order  to  read, 
makes   an   order,  that    the  depositions  of  a  witness  shall    be  read, 
the   proof  of  the   bill    and    answer  will  be  dispensed    with.     This 
order  is   not   made    for    the  purpose   of  njaking  that    admissible  in 

(1)   Gilb.    Ev.  56.     Bull,    N.   P.  240.  dence    was    one    of    the    grounds    upon 

Niglitingale    v.  Devisiiie,  5    Burr.  2.!J94,  which     a     new     tri;il     wis      afterwards 

ad    tin.     Baker    v.     Sweet,    Bumb.    91.  granted.     And    see    Byan    v.    Booth,  2 

Illingworth    v.    Leigh,    4    Gwill.    1619.  Price,  234,  n. 

At  the   trial  of  the  last   cited    case,  Mr.  (2)  See  ante,  p.  334. 

Just.    Heath    refused    to   admit    deposi-  (3)  Byan    v.  Booth,  2  Price,  234,  n. 

tions  in    evidence,  becau'^o  the  bill    and  Gilb.  Ev.  58. 

answer  had    not    been    duly  proved,  nor  (4)  Cazenove  and  another  v.     Vaug- 

enquired    after.     But   it    is    s:iid    by  the  han,  1  Maule  Si  Selw.  4.'^ 

reporter,  that    the    rejection  of  tiiis  evi-  (5)   Baglie  v    Wylie,  6  Esp   85. 


(i)  See  Note  753,  p.  1099.     (j)  See  Note  754,  \>.  1100.     (k)  See  Note  755,  p 
1100.     (0  See  Note  756,  p.  1100. 


396  Of  the  Proof  of  Records  [Ch.  5. 

Probate.  evidence,  which  is   not  strictly   admissible   in   courts  of  common 

law;(l)  and  the  depositions  cannot  be  admitted,  even  under  the 
order,  unless  it  be  satisfactorily  proved  at  the  time  of  the  trial,  that 
the  witnesses  are  unable  to  attend  in  person,  (m)  If  depositions 
were  offered  in  evidence  without  such  an  order,  the  whole  record, 
bill,  answer,  &c.  must  be  regularly  proved;  but  when  there  is  an 
order  for  reading  depositions,  the  court  of  law  will  read  them,  with- 
out going  through  the  regular  and  strict  course,  which  is  general- 
ly necessary  for  the  purpose  of  making  them  evidence.  (2)(n) 

Proof  of  depo-      The  proof  of  depositions  is  by  an  examined  copy.     Office  copies 
siiions.  g^g  evidence  in  the  Court  of  Chancery,  but  not  in  courts  of  com- 

mon law,  for  a  reason  before  mentioned.  (3)(o) 

ludgment  in         Judgments   in  the   House  of  Lords  are  not   formally  drawn  up. 
House  of         but  minutes  only  are  entered   on  ihe  Journals.     The  minutes  of  a 

judgment  are  the  judgment   itself,  and    they  may  be  proved   by  an 

examined  copy.  (4) 

Froceedingg  in  When  the  judgment  of  court-baron,  or  of  any  other  court  of 
inferior  courts,  inferior  jurisdiction,  is  offered  in  evidence,  (p)  the  proceedings,  on 
which  it  is  founded,  ought  to  be  shown;(5)(7)  but  as  the  proceed- 
ings are  not  usually  made  up  in  form,  the  minutes  will  be  admit- 
ted, if  they  are  perfect,  and  omit  nothing  material.  (6)(r)  If  the 
proceedings  in  an  inferior  court  are  entered  on  the  books  of  the 
court,  they  may  be  proved  by  the  memorandum  of  such  entry.  («) 
If  they  are  not  entered  in  the  books,  they  may  be  proved  by  the 
officer  of  the  court,  or  other  person  conversant  of  the  fact.  (7) 

Probate  of  Testaments   are    proved   in  the    ecclesiastical  court  either   in 

'  common   form,  or  in   form   of  law.      'I'he  first  mode  of  proof  is, 

where   the   executor   presents  the   will   before   the  judge,  without 

citing  the   parties   interested,   and   deposes,    that    it    is   the  true 

(1)  15  Ves.  176.  (5)  See  ante,  p.  393. 

(2)  Palmer  v.  Lord  Aylesbury,  15  (6)  Fisher  v.  Lane,  2  Black.  Rep. 
Ves.  176.  Corbett  v.  Corbett,  1  Ves.  834.  Holt,  C.  J.,  in  R.  v.  Hains, 
&  Beam.  310.  Comberb.  337. 

(3)  See  ante,  p.  388.  (7)  See  3  Barn.  A:  Cress.  451,  453, 

(4)  Jones    v.    Randall,    C«wp.     17. 


'  (fTi)  See  Note  757,  p.  1101.  (n)  See  Note  758,  p.  1101.  (o)  See  Note  759,  p. 
1102.  (p)  See  Note  760,  p.  1102.  (q)  See  Note  761,  p.  1104.  (r)  See  Note  762, 
p.  1105.     (»)  See  Note  7fi3,  p.  1105.     (<)  See  Note  764.  p.  1107. 


Ch.  5.]  (i7id  Judicial  Proceedings.  "^"^ 

and  last    will  of  the  testator;    upon  which    the   Judge  allows  the  Probate^ 

will.  The  proof  in  form  of  law  is,  when  the  will  is  exhibited  be- 
fore the  Judge  in  the  presence  of  the  parties  interested,  and  after  a 
full  examination,  finally  allowed.  (1)  If  the  will  be  proved  in  com- 
mon form,  it  may  be  disputed  at  any  time  within  thirty  years;  but 
if  it  be  proved  in  the  more  formal  mode,  and  there  be  no  proceed- 
ings within  the  time  limited  for  appeals,  the  will  cannot  after- 
wards be  disputed.  (2)  (u)  After  proof  of  the  will,  the  original  is  What, 
deposited  in  the  registry  of  the  ordinary  or  metropolitan,  and  a  copy 
in  parchment  is  made  out  under  his  seal,  and  delivered  to  the  ex- 
ecutor, together  with  a  certificate  of  its  having  been  proved  before 
him,  which  copy  and  certificate  are  the  probate.  A  court  of  com- 
mon law  will  not  take  notice  of  a  will  as  a  title  to  personal  property 
till  it  is  proved  in  the  Ecclesiastical  Court;  (2)  (v)  and  though  the 
original  will,  together  with  the  probate,  is  produced  by  the  officer 
of  the  Ecclesiastical  Court,  the  will  cannot  be  read  in  evidence, 
unless  it  bears  the  seal  of  the  court,  or  some  other  mark  of  authen- 
tication. (3)  (w) 

It  is  not  the  practice  in  the  ecclesiastical  courts  to  grant  a  second  Exemplifica- 
probate,  if  the  first  should  be  lost,  but  only  to  grant  an  exempli- 
fication from  the  record  of  the  court,  and  this  exemplification  will 
be  evidenceof  the  proof  of  the  will.  (4)  And  an  examined  copy  of  ^°Py  "^P"""" 
a  lost  probate  is  evidence  of  the  person  there  named,  being  execu- 
tor, as  the  probate  is  an  original,  taken  by  authority,  and  of  a  pub- 
lic nature;  (5)  but  a  copy  of  the  will  would  not  be  evidenceof  that 
fact.  (6)  The  seal  of  the  ecclesiastical  court,  on  the  probate,  need 
not  be  proved.  (7) 

The  probate  of  a  will,  devising  real  property,  is  not  evidence 
of  the  contents,  in  an  action  of  ejectment,  even  to  prove  a  rela- 
tionship; (x)  for  where  the  original  is  in  being,  the  copy  is  not 
admissihle;  and,  besides,  the  seal  of  the  court  does  not  prove  it 
a  true  copy,   unless  the  suit  relate   only  to  personal    properly.  (8) 

(1)  3  Bac.  Ab.  40,  tit.  Execiuor.  (5)   Hoe    v.    Neltliorp,    3    Snlk.    15-1. 

(2)  Stone  v    Forsyth,  2  Doug.  707.  1  Ld.  Rayiii.  154,    S.    C.       Holt,  C.   J. 
(3):R.   v.    Barnes,    1    Starkie,    N    1*.     in  11.    v.   Haynes,  Skin.  584. 

C.  243.  (6)  Bull.  N.  P.  24G. 

(4)  Shepherd   v.    Shoithouse,    1    Str.  (7)   Vide  supra,  p.  385. 

412.  -  Bull.  N.  P.  246.  (S)  Bull.  N.  P.  246. 


(w)  See  Note  765,  p.  1117.     («)  See  Note  766,  p.  1117.     (w)  Sec  Note  767,  p. 
1117.     (r)  See  Note  768,  p.  1119. 


♦398  Of  the  Proof  of  Records  [Ch.  5. 

Letters  of  ad-   But  the  ledger-book,  says  Mr.  Justice  Buller,  is  evidence  in  such  a 

ministration.  ,  ,  •     •  •  i  i  i  i     .  •  ii 

case,  because  ihis  is  not  considered  merely  as  a  copy,  but  is  a  roll 

Ledger-book,    of  tlie    courf,  and    though   the   law   does  not  allow    these  rolls  to 
prove  a  devise  of  lands,  yet  when  the  will  is  only  to  prove  relation- 
ship, the  rolls  of  the  spiritual  court,  which    has  authority    to  enrol 
wills,  are  sufficient  proof  of  such  testament.  (1)     It  has  been  of- 
Oopy  ten  held,  that    a  cowy    of  the    ledger-book   is    not  evidence;  yet 

since  the  original  would  be  read  as  a  roll  of  the  court  without  fur- 
ther attestation,  it  sems  fit,  says  Mr.  Justice  Buller,  that  the  cpy 
should  also  be  read.  The  contrary  practice,  he  adds,  has  been 
founded  upon  the  mistaken  supposition  that  the  ledger-book  is 
read  as  a  copy,  when  in  fact  it  is  read  as  a  roll  of  the  court.  (I ) 

Revocation  of       To  prove  that  the  probate  of  a  will  has  been  revoked,  an  entry  of 
Probate.  ^j^^  revocation  in  a  book  of  the  prerogative  court,  in  which  all  cau- 

ses were  entered  by  the  registrar,  and  which  was  kept  as  the  only 
record  of  such  proceedings,  and  of  the  decree  of  the  court,  has 
been  admitted  to  be  good  evidence.  (2) 

Letters  of  ad-      Administration  is   generally   granted  by   writing  under  seal.     It 

ministration,     n^ay    also    be   granted    by    entry   in    the  registry    without  letters 

under  seal.  (3)      The   Ecclesiastical   Court  never  grants    an    ex- 

^    .^  emplification  of    letters  of  administration,    but  only  a  certificate, 

Certificate.  ^  ,       ,         r  i  i 

that  administration  was   granted;  therefore,  when   a  lessee    pleads 

an  assignment  of  a   term  from  an    administrator,    such   certificate 

is  good  evidence.  (4)      And  the  original  book  of  acts,    directing 

Book  of  ucts.    ,    ^  .     ,    .  .    ^   {  ,  *= ,        .  ,      ,  '         ,      /:  » 

letters  of  admmistration  to  be   granted,    with   the   surrogates    riat 

for  the  same,  is  evidence  of  the  title  of  the  parly,  to  wTiom  ad- 
ministration of  the  intestate's  effects  is  granted,  without  produc- 
ing the  letters  of  administration  themselves  (notwithstanding  sub- 
sequent letters  of  administration  granted  to  another,)  if  the 
first  are  not  recalled;  for  the  original  book  was  the  authority  for 
the  proper  officer,  to  make  out  letters  of  administration,  and  the 
letters  of  administration  were  only  the  copy  of  the  original  min- 
utes of  the   fikourt,   drawn  up   in  a  more   formal  manner.  (5)  (y) 

(1)  Bull.  N.  P.  246.  Cross,    Rep.    temp.  Hard.    108.      Bull. 

(2)  Ramsbotlom's  case,  1  Leach,  Cr.     N.  P.  246 

C.  30,  n.  (c  )  (5)  Elden  v.    Keddell,  8  East,      187. 

(3)  Vin.  Ab   E.xecutor,  D    p.  70.  (larret  v.    Lister,    I    Lev    25      Bull.  N. 

(4)  Kempton,    dem.      Boytield,      v.     P.  2415.     2  MauU;  &  Selw.  567- 


(y)  See  Note  769.  p.  1118. 


Ch.  5.]  a7id  Judicial  Procredings.  399 

So,  an  examined  copy  of  the  act  book,  stating,  that  administration  Award, 
was  granted  to  the  defendant  at  such  a  time,  is  proof  of  his  being  j^^ 
administrator  in    an  action  against   him,  without   giving   him  notice 
to  produce  the  letters  of  administration.  (1) 

Informations  taken  before  a  justice  of  the  peace  or  coroner,  pur-  Examinations 
suant  to  tiie  statutes  of  Philip  and  Mary,  before  they  are  admitted  „"  co^oirr!""^ 
in  evidence  against  the  parly  accused,  ought  to  be  regularly  prov- 
ed by  the  justice  or  coroner,  who  took  them,  or  by  the  clerk   who 
reduced  them  to  writing,  to   be  the  true  substance  of  what  the  in- 
former staled  upon  oath.  (2)(r) 

In  an  action  upon  a  judgment  of  a  court  of  a  foreign  country,  if  Foreign  judg- 
the  judgment  is  subscribed  by  the  Judge  of  the  court,  and  has  a 
seal  affixed,  it  must  be  proved  by  proving  the  hand-writing  of  the 
Judge,  and  the  authenticity  of  the  seal  (3)  If  a  colonial  court  Seal, 
possess  a  seal,  it  ought  to  be  used  for  the  purpose  of  authenticating 
its  judgments,  although  it  may  be  so  much  worn  as  no  longer  to 
make  any  impression.  (4)  If  it  is  clearly  proved,  that  the  court  iias 
not  any  seal,  so  that  the  docun)ent  cannot  be  clothed  with  the 
form  of  a  legal  exemplification,  it  must  be  shown  to  possess  some 
other  requisite  to  entitle  it  to  credit;  (5)  as,  by  proving  the  signa- 
ture of  the  Judge  upon  the  judgment.  (6) 

An  exemplification   of  a  foreign  judgment,  that  is,  a  copy  au-  Proof  of  for- 
ihenticated  under  the  seal  of  the  court,  is  evidence  of  the  judgment  eign  judgment. 
in  the  courts  of  this  country.  (7)      But  a  document,  purporting  to 
be  a  copy  of  a  judgment,  and  to  be  made  by  the  officer  of  the  court 
is  not  adniissible.  (8) (a) 

The  effect  of  an  award  has  been  before  mentioned.  (9)  (6)      In  Award, 
an  action  upon   an  award,  it  will   be  necessary  to   prove  both  the 
subn)ission  and   the   execution   of  the  award,  (c)      And  in  gene- 
ral, whether  the  validity  of  the  award  comes  into  question  directly, 

(1)  Davis     V.     Willi  ms,    13    East,         (5)  2  Starkie,  N.  P.  C.  11. 

232.     Ray  v.  Clarlc,  ib.  238,  n.  (a.)  (6)   Alves  v.   Bunbury,  4  Campb.  2S. 

(2)  2  Hale,  P.  C.  .51,  284.  (7)  2  Starkie,    N.    P.  C.    11,    12,  by 

(3)  Henry    v.     Adey,    3    East,    221.  Lord  Ellenborougli  and  Bailey,  J. 
Buchanan   v.     Kucker,    1    Campb.    63.  (8)   Appleton    v.    Lord     Braybrooke, 
Flindtv.  Atkins,  3  Campb.  215.  6    Maule  &  Selw.  34.     2  Starkie,  N.  P. 

(4)  Cavan  v.  Stewart,  1  Stark.  N.  P.  C.  6,  7,  S.  C. 

C.  525.  (9)  See  ante,  p.  380. 


^2)   See  Note  770,  p.  1120.      (a)  See  Note  771,  p.  1120.     (6)   See  Note  772,  p. 
1135.     (c)  See  Note  773,  p.  1135. 


^00  Of  the  Proof  of  Records  [Ch,  5. 

Award.  OF  Only  incidentally,  the  submission  of  all   the  |)arties  ought  to  be 

regularly  proved,  [d)  Thus,  where  there  had  been  a  deed  of  refe- 
rence, between  a  creditor  and  several  partners,  of  all  copartnership 
accounts,  and  of  all  matters  in  difference  between  the  parties  or 
any  two  of  them,  and  an  action  of  trover  was  afterwards  brought  by 
the  creditor,  the  assignee  under  a  commission  of  bankruptcy  of  one 
of  the  partners,  (in  which  action  the  plaintiff  produced  the  award 
and  deed  of  reference,  as  evidence  of  a  separate  debt  due  to  him 
from  the  bankrupt,)  the  Court  of  King's  Bench  held,  that  it  was 
indispensably  necessary  to  prove  the  execution  of  the  deed  by  all 
the  parties:  for  this  was  a  reference  of  the  aggregate  accounts  be- 
tween all  and  each  of  the  partners,  and  the  consideration  to  each 
for  entering  into  the  submission  was,  that  each  party's  accounts 
should  be  liquidated,  not  only  as  to  one,  but  as  to  all;  the  access 
sion  of  all,  therefore,  ought  to  be  proved;  and,  without  such  proof, 
the  arbitrator  would  not  appear  to  have  competent  authority  to  de- 
cide the  whole  question  between  the  parties.  (1) 


missioners. 


Awardofcom-  If  the  award,  given  in  evidence,  is  the  award  of  commissioners 
under  an  act  of  Parliament,  the  act  ought  to  be  produced,  for  the 
purpose  of  showing  the  authority  of  the  commissioners,  and  that 
the  award  is  conformable  with  the  provisions  of  the  statute,  and,  if 
the  act  is  a  private  act,  it  must  be  regularly  proved.  (2)(e)  If 
previous  notices  are  required  to  be  given,  before  the  commis- 
sioners make  their  award,  proof  of  the  regularity  of  such  no- 
tices will  not  in  ordinary  cases  be  necessary.  But  if  the  circum- 
stances of  the  case  raise  a  presumption,  that  all  has  not  been 
regularly  performed,  then  it  will  be  incumbent  on  the  party  to 
prove  the  due  performance.  Thus,  on  the  trial  of  an  indict- 
ment against  a  parish  for  not  repairing  a  highway,  which  was 
reputed  to  lie  within  the  parish,  and  had  been  from  time  to  time 
repaired  by  the  inhabitants,  an  award  made  by  commissioners  of 
inclosure,  awarding  the  highway  to  be  situate  in  a  different  par- 
ish, was  adjudged  not  to  be  admissible  evidence  for  the  defend- 
ants, because  it  was  not  proved,  that  the  commissioners  had  given 
the  previous  notices,  required  by  the  inclosure  act,  to  the  parishes, 
who  would   be  affected   by  their  award;  the  circumstance  of  the 

(1)  Antrani  v.  Chase,  15  East,  209.         (2)  See  ante,  p.  384. 


(d)  See  Note  774,  p.  1135.       (e)  See  Note  775,  p.  1136- 


CI».  5.]  and  Judicial  Proceedings.  401 

(lefendanis   having   coiuimicd    lo    repair  after  the   award,   raised  a  Foreign  law. 
presumption,    that  there    had  not  been  such   a  notice   as  the  act  of 
parliaiDent  required.  (1) 

The  existence  of  a  foreiji;n  law  is  a  fact  to  be   proved,  hke  any  Proof  of  for- 

"  _  '  ^    eign  laws. 

Other  fact,  by  appropriate  evidence.  Without  such  proof,  our 
courts  cannot  take  notice  of  foreign  law.  (2)  The  written  law 
of  a  foreign  state  is  to  be  proved  by  a  copy  of  the  law,  properly 
authenticated.  (3)  The  unwritten  law  of  a  foreign  state,  (having 
first  been  ascertained  to  be  |>art  of  the  unwritten  law,  by  witnes- 
ses professionally  converi^ant  with  the  laws  of  the  state,)  may 
be  proved  by  the  parol  evidence  of  witnesses,  possessing  compe- 
tent professional  skill.  (4)  (/)  In  the  admirable  judgment,  deliv- 
ered in  the  Consistoiy  Court  of  London,  in  the  case  of  Dai- 
ry mple  V.  Dairy  mple,  (5)  Sir  W.  Scott,  after  observing,  with  ref- 
erence to  the  law  of  marriage  in  Scotland,  that  the  determina- 
tion of  the  question  must  be  taken  from  the  authorities  of  that 
country,  proceeds  thus: — "  The  authorities  to  which  I  shall  have 
occasion  to  refer,  are  of  three  classes;  first,  the  opinions  of  the 
learned  professors,  given  in  the  presenter  similar  cases;  secondly, 
the  opinions  of  eminent  writers,  as  delivered  in  books  of  great 
legal  credit  and   weight  ;  and,   thirdly,   the  certified   adjudication  .^ 

(1)  R.  V.  Inhabitants  of  Haslingfield,  3  Esp.  N.  P.  C.  58.    Miller  v.  Heinriclc, 
2  Maule  &  Selw.  558.  4  Campb.  155.* 

(2)  1  P.  Wil.  431.     3   Ves.  &  Beam.  (4)     Miller   v.    Heinrick.   4    Campb. 
99.      Ganer     v.      Lady     Laneborough,  155.     See  3  Esp.  N.  P.  C.  58. 
Peake.  N.  P.  C.  17.  (5)   Dr.    Haggard'.'!    Reports,    vol.   ii. 

(3)  Gen.    Picton's  case,   30  Howell's  p   81. 
St.  Tr.  491.     Boehtlinek     v.   Schneider, 


*  In  the  case  of  Boehtlinek  v.  Inglis,  3  East,  3Sl,tlie  counsel  for  the  plain- 
tiff, after  proving  one  of  the  mercanlile  navigation-laws  of  Russia,  offered  in 
evidence  a  certificate,  (signed  by  the  presiding  Judge  of  the  Custom-house 
Court  in  Russia,  and  bearing  tlie  seal  of  the  Court,)  which  purported  to  have 
been  delivered  by  the  Judges  lo  tlie  plaintiff,  with  reference  to  the  suit  then 
commenced  in  this  country;  the  certificate  set  out  the  navif^ation-law,  and 
contained  the  opinion  of  the  Judges  of  the  Custom-house  Court  on  its  con- 
struction: the  plaintiff's  counsel  insisted,  that  the  certificate  was  admissible  in 
evidence,  not  simply  as  a  report  of  the  opinion  of  the  Court,  but  as  an  adju- 
dication of  the  law  certified  under  the  seal  of  Court,  and  as  entitled  to  the 
same  credit  as  the  exemplification  of  a  foreign  judgment.  On  the  other  side 
it  was  argued,  that  the  certificate  was  merely  parol  exposition  of  a  written 
law,  and  entirely  extra-judicial;  and  liieicfore  not  admissible.  The  Court 
of  King's  Bench  decided  the  cufc  upon  oilier  pcintf,  and  did  not  express  any 
opinion  upon  the  question,  as  to  the  admissibility  of  the  proposed  evidence. 
The  case  of  Middleton  v.  Janveriu,  in  the  Consi.slory  Court  of  London,  reported  by 
Dr.  Haggard,  vol.  ii.  p.  442,  may  be  referred  to  upon  this  subject. 

(/)  f?ee  Note  776,  p.  1136. 
Vol.  I.  51 


402  Of  the  Proof  of  Records,  ^c.  [Ch.  5. 

roreign  law.  of  the  tribunals  of  Scotland  upon  these  subjects.  I  need  not  say, 
that  the  last  class  stands  highest  in  the  point  of  authority;  where 
private  opinions,  whether  in  books  or  writing,  incline  on  one  side, 
and  public  decisions  on  ilie  other,  it  will  be  the  undoubted  duty  of 
the  Court,  which  has  to  weigh  them,  stare  decisis.'' 

Lnwof colony.  jfa  question  should  arise,  with  respect  to  a  colony,  whether  the 
law  of  the  nioiher-country  is  the  law  of  the  colony,  the  statement 
of  text-writers  may  be  admitted.  In  General  Picton's  case,  (1) 
where  such  a  question  was  suggested  as  likely  to  occur.  Lord  El- 
lenborough  said,  "The  text-writers  furnish  us  with  their  state- 
ment of  the  law;  and  that  would  certainly  be  good  evidence  upon 
the  same  principle,  which  renders  histories  admissible.  There  is  a 
case,"  continued  Lord  Ellenborough,  "  in  which  the  history  of  the 
Turkish  empire  by  Cantemir  was  received  by  the  House  of  Lords 
and  received  after  some  discussion;  I  shall  therefore  receive  any 
book,  that  purports  to  be  a  history  of  the  common  law  of  Spain." 

The  practice  of  a  court  of  justice  in  a  foreign  country  may  be 
proved    by    witnesses    professionally   acquainted    with    that  prac- 

regdTuons!  t'^^-  (2)  (g)  The  commercial  regulations,  of  a  foreign  country, 
ought  to  be  proved  by  well   authenticated   copies  of  such  regula- 

Acis  of  state,  tjons.  (3)  The  acts  of  state,  also,  of  a  foreign  government  can  on- 
ly be  proved  l>y  copies  of  such  acts,  jjroperly  authenticated.  (A) 
Thus,  in  the  case  of  Richardson  v.  Anderson,  (4)  where  the  coun- 
sel on  the  part  of  the  defendant  proposed  to  give  in  evidence  a 
book  purporting  to  be  a  collection  o(  treaties  concluded  by  Ameri- 
ca, and  to  be  published  by  the  authority  of  the  American  govern- 
ment; and  it  was  proposed,  fuitlier,  to  prove,  by  the  American 
minister  resident  at  this  court,  that  the  book  produced  was  the 
rule  of  his  conduct;  this  evidence  was  offered,  as  equivalent  to  a 
regular  copy  of  the  archives  in  Washington:  but  Lord  Ellenbo- 
rough rejected  the  evidence,  and  Ireld  tliat  it  was  necessary  to  have 
a  c'py  examined  wiili  iIk;  archives. 

(1)  30  Howell's  St. '!>    492.  (o)     By    Ld.    Ellenborough,    in   Gen. 

(2)  Buchanan  v.    Rucker,    I  C.iiiijiIj.     Picton's  case,  30  Howell's  tSt.  Tr.  491. 
66.  (4)    I  Campb.  65,  (a.) 


(g)  See  Note  777,  p.  114.'>.      (/;)  See  Note  77S,  p.  1145. 


Ch.  6.]     Of  Public   Writings,  not  Judicial.  40J 

In  the  case  of  Lacon  v.  Higgins,  (1)  Lord  Tenterdei)  admitted  a  Foreign  law. 
copy  of  the  civil   code  of  France,  produced    by  tlie   French  con- 
sul, and   declared   by  him  to  be   an   authentic   copy  of  the  law  of 
France,  as  recorded  by  the  French  courts,  to  be  good  evidence  of 
the  French  law. 

(1)  K.  B.  sitt.  nfter  M.  T.  21  Dee.  1822. 


CHAP.    VI. 

Of  Public    fyritings,  no/  Judicial. 

The  next  species  of  evidence,  which  the  subject  leads  us  to 
consider,  relates  to  such  public  writings  as  are  not  judicial.  In 
treating  of  this  part  of  the  subject,  it  is  proper  to  mention  some 
of  the  principal  documents  of  this  description;  and  then  to  pro- 
ceed to  the  enquiry,  how  a  party,  who  wishes  to  use  public  writings 
in  evidence,  may  obtain  an  inspection. 

The  most  ancient  public  document  in  the  kingdom  is  Domes-  Domesday- 
day-book,  consisting  of  two  volumes,  kept  in  the  receipt  of  the 
Exchequer.  They  contain  a  general  survey  of  all  the  counties 
in  England,  excepting  the  four  northern,  and  were  compiled 
soon  after  the  Conquest,  for  the  purpose  of  ascertaining  the 
ancient  demesne  lands,  which  were  the  soccage  tenures  first  in 
the  hands  of  Edward  the  Confessor,  and  afterwards  of  William 
the  Conqueror.  This  has  been  always  considered  a  book  of  the 
greatest  authority;  and  if  a  question  should  at  any  time  arise, 
whether  a  manor  is  ancient  demesne,  the  trial  is  by  inspection 
of  Domesday-book.  (1)  These  volumes  have  of  late  year^  been 
printed  at  the  expense  of  government,  in  consequence  of  an  ad- 
dress from  the  House  of  Lords;  and  the  uoik  is  said  to  be 
executed  with  the  most  scru|)uloMS  fidtTity  and  correctness.  (2) 
Another  ancient  survey,  wljich  ascertains  the  extent  of  the  king's 
ports,  is  also  deposited  in  the  Exchequer.  (3)  These  surveys 
are  recognised  and  treated  as  authentic  documents  in  courts 
of  justice,  having   been    made    by  the   authority  and    order  of  the 

(1^  Hob.  188      Gilb.  Ev.  69.  inons    on    Public    Records,    Appendi.x, 

(2)   First  Rpport   of  House    of  Com-     A.  1,  a. 

(.3)  Gilb.  Ev.  69. 


404  Of  Public  Writings,  not  Judicial.     [Ch.  6. 

Surreys.  government  of  the  country  on  public  occasions,  and  on  subjects  of 

public  interest. 

clesScal  bel       "^^^^  ^sXov  Beneficiorum,  or  pope  Nicholas's  Taxation,  is  anoth- 
nefices.  er  document  of  a  public  nature.      In  the  year  1288,  Pope  Nicholas 

A.  D.  1291.  '  the  Fourth,  to  whose  predecessors  in  the  see  of  Rome  the  first-fruits 
and  tenths  of  all  ecclesiastical  benefices  had  for  a  long  time  been 
paid,  granted  the  tenths  to  King  Edward  the  First  for  six  years, 
towards  defraying  the  expense  of  an  expedition  to  the  Holy  land; 
and,  that  they  might  be  collected  to  their  full  value,  a  taxation  by 
the  king's  precept  was  begun  in  that  year,  and  finished  for  the 
province  of  Canterbury  in  the  year  1291,  or  the  20th  year  of  the 
reign  of  Edward  the  First;  and  for  that  of  York  in  the  following 
year;  the  whole  being  under  the  direction  of  the  Bishops  of  Win- 
ton  and  liincoln.  (1)  This  taxation  of  Pope  Nicholas  is  an  in- 
portant  document,  because  all  the  taxes,  as  well  as  those  paid 
to  our  kings  as  those  to  the  Pope,  were  regulated  by  it,  till  the 
survey  made  in  the  twenty-sixth  year  of  Henry  the  Eighth;  and 
because  the  statutes  of  colleges,  which  were  founded  before  the 
Reformation,  are  also  interpreted  by  this  criterion,  according  to 
which  their  benefices  under  a  certain  value  are  exempted  from 
the  restriction  in  the  statute  of  the  twenty-first  of  Henry  the 
Eighth  concerning  pluralities.  (2)  The  taxation  is  evidence  of 
the  rate  and  value,  at  which  the  persons,  employed  in  that  tax- 
ation, thought  fit  at  that  time  to  estimate  the  living.  (3)  The 
original  is  kept  in  the  office  of  the  king's  remembrancer  in  the 
Exchequer. 

26  H.  s.  Anew   Valor  Beneficiorum   was  instituted   in   the  twenty-sixth 

year  of  Henry  the  Eighth,  when  the  first-fruits  and  tenths  of 
every  ecclesiastical  promotion  were  annexed  to  the  revenue  of 
the  crown.  (4)  To  ascertain  their  value,  ecclesiastical  surveys 
were  taken,  by  virtue  of  commissions  in  the  king's  name  issu- 
ing under  the  great  seal;  (5)  and  these  surveys  are  admitted  as 
evidence  of  their  amount   at  that  period,  although   they  are  gene- 

(1)  See   first    Report   of     House    of  (3)  By    Lord    Redesdale,    Bullen    v. 
Commons  on  Public  Records,  p.  15.  Michel,  2  Price,  477. 

(2)  Humphreys      v.      Knight,     Cro.  (4)  St.  26  H.  8,  c.  3. 
Car.  455.     2    Lutvv.    1305.     Stump   v  (5)  Sect.  3  &  10. 
Aylifle,  2  (iwill.  536. 


Vnior  benefi- 
ciorum. 


Ch.  6.]     0/  Public  Writings,  not  Judicial.  405 

rallv  considered  as  estimating  the  value  much  too  low.  (5)  It  is  Surveys, 
to  be  observed,  that  the  Valor  Beneficioruni  of  the  reigu  of  Hen- 
ry the  Eight  in  no  instance  mentions  the  existence  of  a  modus. 
The  commissioners  appear  not  to  have  taken  notice  of  any  ex- 
isting modus,  or  immemorial  agreement  between  the  parson  and 
the  occupiers;  but  to  have  calculated  the  value  of  the  first-fruits 
and  tenths,  without  considering  the  question  of  modus,  or  any  oth- 
er legal  exemption, 

Surveys  of  the  possessions  of  religious  houses,  previous  to  the 
dissolution  of  the  monasteries,  are  admissible  in  evidence,  upon  the 
same  principle;  and,  in  the  case  referred  to,  were  admitted,  to 
show  what  tithes  belonged  to  the  rector,  and  what  to  the  vicar.  (2) 
These  surveys  are  admissible,  although  the  commissions,  under 
which  they  were  taken,  are  not  to  be  found.  (3) 

Surveys  of  the  church  and  crown  lands  were  taken  by  comniis-  Parlinmentary. 
sioners  in  the  time  of  the  Commonwealth,  under  the  authority  of 
acts  or  ordinances  of  the  parliament;  and  copies  of  these  surveys 
were  deposited  in  many  of  the  cathedrals.  'I'he  originals  would 
have  been  good  evidence  of  the  particulars  of  the  surveyed  estates, 
upon  the  same  principle  as  the  other  public  surveys  which  have 
been  before  mentioned;  but  as  they  were  destroyed  at  the  time 
of  the  great  fire  in  London,  the  copies  have  been  admitted,  as 
evidence,  in  the  place  of  the  original  surveys,  provided  they  have 
been  kept  in  unsuspected  repositories.  (4)  The  parliamentary  sur- 
veys have  the  credit  of  being  taken  with  extreme  accuracy  and 
minuteness.  The  circumstances,  therefore,  of  these  surveys  being 
silent  as  to  a  supposed  modus,  has  been  considered  to  be  strong 
evidence  against  its  existence.  (5) 

The  history  of   the   Inquisitiones  J^onarum  is  thus  given  in  the  Inquisiiiones. 
Report  of  the  Commissioners  of  Public  Records,  before  referred 

(1)  3    Gwill.   856,    1240.       4  Trice,         (4)   Underbill    v.     Durham,   2   Gwill. 
221.       5  Price,  377.     2  Price,  435  542.      Green    v     Proude,   1    Mod.    117. 

(2)  Vicar    of    Kellington     v.     Trin.     Pullon    v.    Michel,    4    Dow.     325.       2 
Col.  Cambridge,  1  Wils.  170.  Price,  399,  S.  C. 

(3)  1    Wils     170.  Biigshaw    v.  Bisb-         (5)    1 1  East,  284       1  .Maule    &  Selw. 
op  of  Bangor,  cited  in  Underbill  v-  Dur-     294 

ham,  2  Gwill.  542. 


406  Of  Public  Writings,  7Wt  Judicial.  (Ch.  6. 

Surveys,  to.  (1)      A  grant  having  been   made  by  parliament  to  Edward  ilie 

Third,  in  the  fourteenth  year  of  his  reign,  of  the  ninth  lamb, 
ninth  fleece,  and  ninth  sheaf,  assessors  and  venditors  were  there- 
upon appointed,  and  directed,  by  three  commissions  under  the  great 
seal,  for  every  county  in  England,  to  assess  and  sell  these  nintlis. 
The  Inquisiliones  .,\onaruwi  were  taken  under  the  third  commis- 
sion, whereby  the  commissioners  were  directed  to  levy  the  ninth 
of  corn,  wool,  and  lambs,  in  every  parish,  according  to  the  value 
upon  which  churches  were  taxed,  (this  means  Pope  Nicholas's 
taxation,)  if  the  value  of  the  ninth  amounted  to  as  much  as  the 
tax;  but  should  the  value  of  the  ninth  be  less  than  the  tax,  they 
were  directed  to  lay  only  the  true  value  of  the  ninth,  and  to  dis- 
regard the  tax;  and  to  gain  correct  information  of  these  facts,  they 
were  directed  to  take  inquisition  upon  the  oath  of  the  parishioners, 
in  every  parish.  These  inquisitions  form  the  records  called  the  In- 
quisitioties  J\%narum. 

Journals  of  The  Journals  of  the  Lords  or  Commons  are  evidence  of  their 

proceedings,  (i)  An  entry  in  the  Journals  of  the  House  of  Lords, 
stating,  that  a  judgment  below  has  been  reversed,  is  evidence  of 
the  fact  of  reversal;  (2)  and  the  Journals  have  been  admitted 
to  prove  an  address  from  the  House  of  Lords  to  the  King,  and 
the  answer  of  the  King. (3)  Thus,  the  address  of  the  Lords 
to  the  King,  and  the  King's  answer,  proved  by  the  Journals, 
have  been  admitted  as  evidence  of  an  averment  in  an  infor- 
mation, that  certain  differences  had  existed  between  the  King  of 
England  and  the  King  of  Spain.  (4)  Here,  it  is  to  be  observed, 
the  fact  related  purely  to  a  matter  of  state,  and  therefore  ad- 
mitted of  this  kind  of  proof.  But  a  resolution  of  either  House 
is  not  evidence  of  the  truth  of  facts  there  affirmed;  and  there- 
fore in  the  case  of  Titus  Gates,  who  was  charged  with  having 
committed  perjury  on  the  trial  of  persons  suspected  of  the  po- 
pish plot,  a  resolution  in  the  Journals  of  the  House  of  Com- 
mons, asserting  the  existence  of  the  plot,  was  not  allowed  to  be  ev- 
idence of  that  fact.  (5)      An  entry  in  the  Journals  may  be  proved 

(1)  Appendix,  (L.  2,)  p   146.  spe  the   case   of  the   Seven  Bishops,    4 

(2)  Jones    v.  Randal,  Cowp.  17.  St.  Tr.  39. 

(3)  Franklin's   case,   9  St.   Tr.    259,  (4)  See  note  (3,)  supra, 
cited  by    Duller,  J.  5  T.   R.    415.  And  (.5)  4  St.  Tr.  39. 


(t)  See  Note  779,  p.  1145. 


Ch.  6.]         0/  Public  Writings,  not  Judicial.  407 

by  an  examined   copy  compared   with   ilie  original;  bnt  cannot  be  Gazettes, 
proved  by  ihe  printed  Journals.  (1) 

The  public  acts  of  government,  and  acts  by  the  king  in  his  Gazettes, 
political  capacity,  are  commonly  announced  in  the  Gazette, 
published  by  the  aulhorily  of  the  Crown;  and  of  such  acts 
announced  to  the  public  in  the  Gazette,  the  Gazette  is  admit- 
ted in  courts  of  justice  to  be  good  evidence.  A  proclamation  Proclamation, 
for  reprisals,  published  in  the  Gazelte,  is  evidence  of  an  exist- 
ing war,*  Proclamations  for  a  public  peace,  or  for  the  per- 
formance of  quarantine,  and  any  acts  done  by  or  to  the  king 
in  his  regal  character,  may  be  proved  in  this  manner;  (2)  and 
upon  the  same  principle,  articles  of  war  purporting  to  be  printed 
by  the  king's  printer,  are  allowed  to  be  evidence  of  such  arti- 
cles. (3)  A  Gazette,  in  which  it  was  stated,  that  certain  ad- 
dresses had  been  presented  to  the  King,  has  been  adjudged  to  be 
proper  evidence,  to  prove  an  averment  of  that  fact  in  an  inform- 
ation for  a  libel;  (4)  for  they  are  addresses,  said  Lord  Kenyon, 
of  different  bodies  of  the  King's  subjects,  received  by  the  King 
in  his  public  capacity,  and  they  thus  become  acts  of  state. 
And  in  the  late  case  of  the  King  v.  Sutton,  (5)  the  Court  of  King's 
Bench  determined,  that  the  King's  proclamation,  (which  recited, 
that  it  had  been  represented,  that  certain  outrages  had  been 
committed  in  different  parts  of  certain  counties,  and  offered  a 
reward   for   the    discovery   and    apprehension   of  offenders,)  was 

(1)  Lord  Melville's  case,  29  Howell's  cles  of  capitulation,  for  the  surrender  of 
St.  Tr.  683.  an  island,  were  proved  by  the  Gazette. 

(2)  5  T.  R.  436,  443.  Quelch's  (3)  R.  v.  Withers,  cited  by  Buller, 
case,  8  St.  Tr.  212.  Dupays  v.  Shep-  J.,  5  T.  U.  446.  See  stat.  55  G.  3,  c. 
herd,  Rep.    temp.  Holt,  296.     Attorney  108,  s.  36. 

General    v     Theakslone,    8    Price,    89;  (4)   R.  v.  Holt,  5  T.  R.  436. 

General     Piclon's     case,    30    Howell's         (5)  4  Maule  &  Selw.  546. 
St.    Tr.    493;  in   which   case   the  arti- 


*  Public  notoriety  is  gnfficient  evidence  of  the  existence  of  a  war.  Foster, 
Disc  ch.  2,  s.  12,  p.  219.  11  Vesey,  292.  Evidence,  therefore,  was  not  pro- 
duced to  prove  ihis  fact,  t!  ough  averred  in  the  indictment,  in  the  cases  of 
.Sir  John  Friend  and  Sir  W.  Parkyn,  in  Cook's  case,  and  Vaughan's  case, 
which  are  reported  in  tlie  State  Trials.  A  declaration  of  wai  by  a  foreign  govern- 
ment, transmitted  to  this  country  by  the  English  ari,ba.ss;idor,  and  produced  from 
the  Secretary  of  State's  othce,  has  been  admitted  as  evidence  of  the  commencement 
of  hostilities  between  that  government  and  another  state.  Thelluson  v.  Coslin^  4 
Esp.  N.  P.  C.  266.     Case  of  Eliza  Ann  and  others,  1  Dodson,  Adm.  Rep.  244. 


-i^'^  Of  Public  Writings,  not  Jmlidal.         [Ch.  G. 

Parish  regis-    admissible  in  evidence,  as  proof  of  an  introductory  averment  in  an 
; information  for  a  libel,  that  acts  of  oiitraj^es  of  that   particular  de- 
scription had  been  committed  in  those  parts  of  the  country. 

Gazettes  are  not  evidence  of  private  titles  or  private  interests, 
as  of  a  presentation,  or  of  a  grant  by  the  King  to  an  individual, 
which  have  no  reference  to  the  affairs  of  government;  nor  is  a 
Gazelle  evidence  to  prove  an  appointment  to  a  commission  in  the 
army.  (1) 

b!!nkTuptcy  Notices    relating    to    bankruptcies   are   cons'.antly   inserted    in 

the  Gazette;  and  ihey  are  made  sufficient  by  act  of  parliament. 
Notices,  also,  of  the  dissolution  of  partnerships,  are  very  com- 
monly inserted.  An  advertisement  in  the  Gazette,  announcing  a 
dissolution,  has  been  admitted  as  evidence  of  a  public  notifica- 
tion of  that  fact;  but  such  evidence  is  of  little  avail,  unless  it 
be  shown,  that  the  party,  entitled  to  notice,  was  in  the  habit  of 
reading  the  Gazette.  (2)  And  such  an  advertisement  in  a  com- 
mon newspaper  is  not  even  admissible,  without  proof  that  the  party 
took  in  that  paper.  (3)  If  the  paper,  containing  the  advertisement, 
is  proved  to  have  been  read  by  the  party,  or  if  it  is  proved  only  to 
have  been  delivered  in  the  usual  course  at  the  house  of  the  party, 
the  jury  may  reasonably  be  instructed  to  consider,  whether  the 
attention  of  a  tradesman,  in  reading  a  newspaper,  was  not  likely 
to  be  attracted  by  notices  of  the  dissolution  of  partnerships,  to 
which  the  attention  of  others  might  not  be  directed;  and  it  is  a 
question  for  the  jury  to  determine,  whether,  under  all  the  circum- 
stances of  the  case,  the  party  had  actually  received  notice  of  the 
dissolution.  (4)  ( j) 


ters. 


Parish  regis-  Parish  registers  are  evidence  of  births,  marriages,  and  burials. 
Registers  are_  directed  to  be  kept  as  public  books,  and  are  ac- 
companied  with  all   ihe  means   of  authenticity.     "  They  are  in 


(1)  Kirwan  v.  Cockburn,  5  Esp.  N.  See  iiiso  Grahnin  v.  Hope,  Peake,  N.  P. 
P.  C.  233  R  V.  Gnrtlner,  2  Campb.  C.  154.  (iorham  v.  Thompson.  Peake, 
513.  N.  P.  C.  42. 

(2)  Leeson  v.  Holt,  1  Stark.  N.  P.  C.  (3)  1  Starkie,  N.  P.  C.  136. 

186.      (lodfrey     v.   Macauley,     Peake,  (4)  Jenkins    v.  Ulizard   and   another, 

N.  P.  C.  155.     1    Esp.  N.  P.  C.  371,  H  I  Starkie,  N   P.  C.  420. 
C.     Nevvsoino   v.  Coles,  2  Campb.  filit- 


(_;•)  See  Note  780,  p.  1145. 


Ch.  ().]        Of  Public  fVr  itings,  not  Judicial,  409 

the  nature  of  records,"   said  Lord    MansOeld,  "and   need  not  be  P'fish  regis- 

tsrs- 

produced,  or  proved  by  subscribing  witnesses."  (1)      To  prove  a 

marriage,  for  instance,  an  examined  copy  of  an  entry  is  suffi- 
cient; tliis  is  proof  of  a  marriage  at  a  certain  tinne,  between  two 
parlies  describing  themselves  by  the  names  and  places  of  abode 
there  mentioned. 

Tlie  keeping  of  registries  for  entries  of  births  and  christenings 
commenced  in  the  thirtieth  year  of  the  reign  of  Henry  the  Eighth, 
and  was  afterwards  enforced  by  injunctions  from  Edward  the  Sixth 
and  from  Queen  Elizabeth.  (2)  Registers  also  for  the  recording  of 
burials  and  weddings  were  directed  to  be  regularly  kept,  by  one  of 
the  canons  of  the  church.  (3)  But  the  fullest  directions  are  given  How  kept, 
by  the  marriage-aci;  (4)  which,  after  requiring  registers  to  be  kept 
as  public  books  in  every  parish,  for  the  purpose  of  registering  mar- 
riages, enacts,  that  "  imtr.ediately  after  the  celebration  of  every 
marriage,  an  entry  thereof  shall  be  made  in  such  register,  in  which 
entry  or  register  it  shall  be  expressed,  that  the  marriage  was  cele- 
brated by  banns  or  licence;  and  if  both,  or  either  of  the  parties 
married  by  licence  be  under  age,  with  consent  of  the  parents  or 
guardians,  as  the  case  shall  be;  and  shall  be  signed  by  the  minis- 
ter with  his  proper  addition;  and  also  by  the  parties  married,  and 
attested  by  two  credible  witnesses." 

By  the  canons  of  1603,  copies  of  parish  Registers  in  every  Copies  regis- 
diocese  ought  to  bo  regularly  transmitted  once  in  every  ""^^ 
year  to  the  diocesan  or  his  chancellor;  (5)  a  regulaiion  ex- 
tremely '^important,  for  the  purpose  of  guarding  the  evidences 
of  title  and  pedigree,  but  which  has  been  so  generally  neglected 
as  to  make  it  necessary  for  the  legislature  to  interpose,  and 
pass  an  act  for  their  better  preservation.  It  is  by  this  statute 
enacted,  (6)  that  copies  of  the  register  books,  verified  by  the 
officiating  minister  of  the   parish,   shall   be   transinitted    annually 

(1)  Birt  V.  Barlow,  1    Doug.  173.     A  case  of  Drake  v.  Smyth   and  others,  be- 

book,  entitled  The  Parish  llegi^ster,  pro-  fore  ihe    Lord    Chief    Baron.     5    Price, 

duced    from  a    chest    in     the     vicarage  369,  372,  377. 

house,    and    containing     ancient    entries         (2)   3  Burn.  Eccl.  L.  275.     Gilh.  Ev. 

respecting  tithes   due    to  the   vicar,    one  68. 

of  which   entries  purported   to  be    made         (3)  Can.  70.     3  Burn.  loc.  oil. 
about  150  years  ago  by  the  vicar  of  that         (4)  St.  26  G.  2,  c.  33,  s.  14. 
time,  was   admitted  in    evidence   on   a         (5)    Can.    70.     Gibsou's   Codex,    p. 

question  of  tithes   between  a  succeeding  204 
vicar  and  occupiers  of  the  parish,  in  the         {6)  Stat   52  G.  3,  c    146,  g.  7. 

Vol.   I.  52 


410 


Of  Public  Writings,  not  Judicial.         [Ch.  6. 


Parish  regis-     by  the  cliurcliwaidens,  after  they  or  one  of  them  shall  have  signed 

the  same,  to  the  registrars  of  the  diocese  within  which   the  church 

is  situated,  (/c) 

Effect  of.  An  entry  of  marriage  in  the    parish  register,   made  in  the  form 

prescribed  by  the  act  of  parliament,  is  evidence  that  the  persons 
therein  named  were  married,  on  the  day  specified,  by  banns  or 
licence,  as  tiie  case  may  be.  Such  an  entry  is  not  essential  to  the 
validiiy  of  a  marriage;  so  that,  if  it  has  been  expressed  in  the 
regular  form,  the  only  consequence  will  be,  thai  it  cannot  be  ad- 
mitted as  evidence  of  the  marriage,  which  must,  therefore,  be 
established  by  some  other  medium  of  proof. 

Bigamy.  In  a  prosecution  for  bigamy,  it  will  not  be  indispensably   necei- 

sary  to  prove  the  registration  of  either  marriage:  it  is  sufficient  to 
prove  the  fact  of  marriage  by  a  person  present  at  the  time.  (1)  (/) 


Identity  of 
party. 


In  order  to  prove  that  the  parlies  described  in  the  register,  are 
the  same  parties  whose  marriage  is  in  question,  it  rnust  obviously 
be  unnecessary  to  call  either  of  the  subscribing  witnesses  to  the 
register;  any  evidence  which  satisfies  the  jury  concerning  their 
identity,  will  be  sufficient;  as,  by  proof  of  the  similarity  of  their 
hand-writing,  or  that  the  bell-ringers  were  paid  by  them  for  ring- 
ing after  the  marriage,  or  by  proof  of  other  circumstances  to  ascer- 
tain the  persons.  (2)  (m) 


Register  i  ( 
ohristenir-.s 


An  entry  in  a  register  of  christenings,  stating  the  year  of  the 
birth,  is  not  evidence  in  support  of  a  plea  of  infancy:  (3)  and  the 
mere  entry  of  christening,  unaccompanied  by  any  evidence  show- 
ing that  the  person  was  young  at  the  time  of  christening,  does  not 
prove  the  fact  of  birth  in  the  parish.  (4)  (n) 


Books  not 
cognized. 


A  book  of  Fleet  nuirriages   rannct   be   read  as  a  register,    not 
having    been   compiled    imdtM-   puldic   authority,    and    is   not   legal 

(1)  R.  V   Allison,  Rus.s.    &.    !!v.  Tr.         (S)  Wihen  v.    Law,  3   Stark.   N.    P. 
C.  109.  '  C.  6;;. 

(2)  Bull.  N.  P.  27.  (4)  R.  v.  North    Petherton,    5   Barn. 

&  Cress.  508. 


(fe)  See  NoleTSl,  p.  1147.     {I)  See  Notn  :S2,  p    1147.     (^m)  Sec   Note   783, 
j>.  1149.     (n)  See  Note 784,  p.  1I4'<>. 


Ch.  6.]       Of  Public  Writings,  not  Judicial.  41 1 

evidence  of  a  marriage.  (l)(o)      A  copy  of  a  register  of  baptism,  Ship  register, 
kept  in  the  island    of  Guernsey,  is  not    admissible  in  our  courts  of 
law;  (2)  nor  is  the  copy  of  a  register  of  a  foreign  chapel  admitted 
here  as  proof  o."  a  marriage  abroad.  l3)(p) 

Public  registers  are  required  by  act  of  parhament  to  be  kept  for  R'-g'stora  of 

.  .  .  ships. 

the  registering  of  ships;  (1)  and  the  register  and  certificate  of  reg- 

isr^er  are   conclusive   evidence  of  want  of  title,  against  those  who  EfTbctasto 

,  •       ■  .  ,|.,  .  .  \-  r  persons  n  Jt 

are  not  named  m  the  register.  1  lius.  m  an  action  on  a  policy  ol  f,,,nied. 
insurance  on  freight,  where  the  interest  in  a  shi[)  and  its  earnings 
were  alleged  to  be  in  four  |jersons,  who  were  partners  ia  trade,  two 
only  of  whom  were  named  as  owners  in  the  register,  in  was  decid- 
ed, that  the  action  could  not  be  maintained,  alihcrgh  it  was 
proved  as  a  fact,  that  the  ship  had  been  paid  for  by  all  the  four 
partners:  for  as  the  plaintifls  claimed  the  freiglit  only  in  right  of 
ownership,  they  could  not  recover  without  ])roving  that  riglit;  and 
it  appeared  conclusively  from  the  register,  tl.at  all  the  four  partners 
had  not  a  legal  title  to  the  ship.  (.5) 

The  register  of  a  ship,  then,  is  conclusive  evidence,  that  persons,  ^'°^  evidence 
,  °  ,  '         ,  ,,,,..       of  ownership, 

•who   are    not  there    named  as    owners,    cannot    legally    be   joint  perse. 

owners;  but  the  converse  of  the  rule  is  not  true,  namely,  that 
all  persons  who  are  named  as  owners  m  the  register,  arc  liable 
as  such.  Such  registers  are  not  recognized  as  public  docu- 
ments, to  prove  the  ownership;  and  they  are  not  evidence  to 
fix  the  parlies  therein  named  as  owners,  in  actions  against  shem, 
unless  they  are  shown  to  have  been  made  by  their  assent  or 
recognized  I'y  them.  This  point  was  decided  in  the  case  of 
Tinkler  v.    Walpole;  (G)  uhicii    was    an    action    for   goods    sold 

(1)  Reed  V.  Piisser,  Peake,  N.  P.  C.  TOS.  14  East,  229.  M.irsii  v.  Robiii- 
231.     Lloyd    v.    Pussingham,    1    Coop-     son,  4  Esp.  9S. 

er,  Ch.  C.  155.  (6)    14  East,  226.     Cooper  v.  Souih 

(2)  Huet  V.  Le  Mesurier,  1  Cox.  nnd  others,  4  Taunt.  802.  Smith  v. 
<"aa.  275.  Whitehead  v  Wynne,  I  Fnge,  'A  Campb.  450.  Fniser  v.  Hop- 
Jac.  &  Walk.  483.  kins,  2  Taunt.  5.     2  C.imph.  170,  S.  C  . 

(3)  Leader  v.  Bany,  1  Esp.  N  P  C.  'J'eed  v.  Martin,  4  Campb.  90.  Upon 
3S3.  the  same    principle,  an     entry    in  books, 

(4)  St.  26  G.  3,  c  65.  St  34  G  kept  in  the  oflice  for  licensing  sta<re- 
3,  c.  63.  The  reader  is  referred,  on  coac'ncs,  is  not  any  proof,  liiat  per- 
this  subject  to  Lord  Tcntcrdcn's  sons,  named  in  the  lietcnce,  are  own- 
Treatise  un  shippirij^,  cli.  2,  p.  27.  crs    of  a  roarli.     S:rotlier    v.    W'illan,  4 

(5)  Camden    v.    Anderson,  5  T,   R.  Cnmpb.    24.       See    also    Ellis    v.    Wat- 

son, 2  Stnrkie,  N.  P.  C.  45S,  47.8. 

(o)  See  Note  785,  p.  1149.     {p)  Se*e  Note  786,  p.  1149, 


412  Of  Public  Writings,  not  Judicial.     [Ch.  6. 

Ship  register.  3,)^  delivered  for  the  use  of  a  ship,  against  ilie  defendant  as  one  of 
the  owners.  At  ihc  trial  of  the  cause,  in  order  to  prove  the  own- 
ership of  the  defendant,  two  registers  were  offered  in  evidence, 
purporting  to  have  heen  made  on  the  oaths  of  the  managing 
owner,  wlio  gave  the  order  for  the  goods,  and  of  two  other  part- 
owners,  swearing  that  they  and  others  named,  including  the  de- 
fendant, were  owners  of  the  ship;  and  it  was  insisted  that  these 
registers  on  account  of  their  authenticity  as  public  documents, 
required  for  public  purposes,  and  obtained  under  the  sanction  of  an 
oath,  ought  to  be  considered  at  least  prima  facie  evidence  to  prove 
the  defendant  a  part-owner.  But  Lord  Ellenborough,  C.  J.,  who 
tried  the  cause,  ruled  that  the  evidence  was  not  admissible,  unless 
it  could  be  shown  that  the  defendant  had  assented  to  the  register, 
or  at  least  had  recognized  it.  And  this  opinion  was  afterwards 
confirmed  by  the  other  Judges  of  the  court. 

Upon  the  same  principle,  a  register  is  not  of  itself  evidence  of  a 
joint  ownership,  in  support  of  the  defendant's  plea,  that  other  per- 
sons, there  named,  are  jointly  liable  with  him;  (1)  nor  is  it  evi- 
dence, that  the  ship  is  British-built,  as  there  described. (2)  So,  in 
an  action  brought  by  the  plaintiff  as  agent,  on  a  policy  of  insurance, 
the  register  is  not  evidence  to  prove  an  averment,  that  the  interest 
in  the  ship  is  in  the  persons  there  described.  (3)  The  legislature 
has  made  the  registration  necessary  to  complete  a  title,  but  this 
Proof  of  pro-  does  uot  make  it  of  itself  proof  of  the  title.  Property  in  a  ship  may 
per  y  m  sups.  ^^  proved  uow,  as  it  was  proved  before  the  acts  of  parliament  relat- 
ing to  registers:  as,  for  example,  by  proof  of  acts  of  ownership,  or 
by  proving  actual  possession  in  the  i)arty,  or  in  those  to  whom  he 
has  committed  it,  or  in  tliose  from  whom  he  has  himself  derived 
his  title.  Any  one  of  these  media  of  proof  is  sufficient  prima /acie 
evidence  of  ownersi)ip,  without  the  aid  of  documentary  proof  or  of 
title-deeds    (4) 

(1)  Flower  v.      Young.    3    Cainpb.         (4)  4    Taunt.    65  7.      Robertson     v. 
240.  rrench,    4    East,     136.      Hubbard     v. 

(2)  lleusse  v.     Meyers,    8    Campb.     Johnston,  3    Taunt.    177,  203.     Amery 
475.  V.    Rogers,     1    Esp.    N.    P.      C.    207. 

(3)  Pirio    V.     .Anderson,    4    Taunt      Thomas  v-  Foyle,  5  Esp.  N.  P-  C    88 
652. 


(9)   See  Note  787,  p.  1161. 


Ch.  6.]  Of  Public  Writings,  not  Judicial.  413 

It  is  enacted  by  st.  17  G.  2,  c.  38,  s.  14,  that  true  copies  of  all  ^°°J;^J^"^P"»^- 

rates  and  assessments,  made  for  the  relier  of  the  poor  be  entered  in 

a  book  to  be  provided  for  that  purpose  by  the  chiirch-wardens  and 
overseers  of  the  poor  of  every  parish,  &c.  who  shall  take  care,  that 
such  copies  be  entered  accordingly  within  fourteen  days  after  all 
appeals  from  such  rates  are  determined,  and  shall  attest  the  same 
by  putting  their  names  thereto;  and  every  such  book  shall  be 
carefully  preserved  by  the  church-wardens,  &c.,  for  the  time  being 
or  one  of  them,  in  some  public  place,  in  every  such  parish,  &c., 
vvhereunto  all  persons  assessed  or  liable  to  be  assessed  may  freely 
resort,  and  shall  be  delivered  over  from  time  to  time  to  the  new 
and  succeeding  church-wardens,  &c.,  as  soon  as  they  enter  into 
their  offices,  and  shall  be  produced  by  them  at  the  general  or  quar- 
ter sessions,  when  any  appeal  is  to  be  heard  or  determined. 

The  Stat.  42  G.  3,  c.  46,  enacts,  that  the  overseers  of  the  poor  Book  for  par- 
of  every  parish  shall  provide  and  keep  a  book  at  the  expense  of  the  " 
parish,  and  enter  therein  the  name  of  every  child,  who  shall  be 
bound  out  by  them  respectively  as  an  apprentice,  together  with  the 
several  other  particulars,  in  the  manner  and  form  required  by  this 
act;  and  every  such  entry  shall  be  produced  and  laid  before  the 
two  justices  of  the  peace,  who  shall  signify  their  assent  to  the  in- 
denture of  apprenticeship,  at  the  time  when  such  indenture  shall 
be  laid  before  them  for  that  purpose,  and  each  entry  shall,  if  approv- 
ed of,  be  signed  by  them  according  to  the  prescribed  form.  And 
in  the  third  section,  it  is  enacted,  that  any  person  may  at  all  sea- 
sonable hours  inspect  such  book  in  the  hands  of  the  said  overseer, 
and  take  a  copy  of  such  entry;  and  every  such  book  shall  be  deem- 
ed to  be  sufficient  evidence  in  all  courts  of  law  in  proof  of  the  ex- 
istence of  such  indentures,  and  also  of  the  several  particulars  speci- 
fied in  the  register  respecting  such  indentures,  in  case  it  shall  be 
proved,  to  the  satisfaction  of  the  Court,  that  the  indentures  are  lost 
or  destroyed. 

The  register  of  the   Navy-office  has  been   admitted    in  evidence  Booksin  pub- 
to   prove    the  death   of  a  sailor;  (1)   the    book   from    the  master's   '°  °   '^^^' 

(I)   Bull.    N    P.   24!).  Rhode's   case,     5    Esp.  N.    P.    C.    117.     See  Barber   v. 
1  Leach,    Cr.    C.  29  VVailacc    v    Cook,     Holmes,  3  Esp.  N.  P.  C    190. 


41-i  Of  Public  IVritings,  not  Judicial.         [Ch.6. 

Books  la  pub-  office  ill  the  Court  of  King's    Bench,  to  prove  a  person  one  of  the 

\_ altornies  of  that  court;  (1)  and  the  log-book  of  a  man  of  war,  which 

convoyed  a  fleet,  to  prove  the  time  of  the  aonvoy's  sailing.  (2)  (r) 
Bank-books  are  good  evidence  to  prove  the  transfer  of  stock. (3)  (s) 

On  a  prosecution  for  a  hbel  pubhshed  concerning  a  person  in 
^.  ,  .  his  office  of  treasurer  of  a  parish,  an  entry  in  a  vestry-book,  staling, 
that  he  was  elected  at  a  vestry  duly  held  in  pursuance  of  noiice, 
has  been  considered  sufficient  evidence,  to  support  an  allegation  in 
the  indictment,  that  he  was  duly  elected  treasurer.  (4)  {t)  So,  in 
an  action  for  disturbing  the  use  of  a  pew  in  a  church,  an  old  entry 
in  the  vestry-book,  staling  that  the  pew  had  been  repaired  by  the 
then  owner  of  a  messuage,  (under  whom  the  plaintiff  claimed,) 
has  been  admitted  as  evidence  of  his  right;  being  made  by  the 
church-wardens  on  a  subject  within  the  scope  of  their  official  au- 
thority, and  as  showing  the  reputation  in  the  parish  respecting  thi? 
right.  (5) 

Prison-book.  The  day-book   of  a  public  prison   containing  a  narrative  of  the 

transactions  of  the  prison,  has  been  received  upon  the  same  princi- 
ple, as  proof  of  the  time  of  the  prisoner's  commitment  or  dis- 
charge: (6)  but  it  would  not  be  admissible  to  prove  the  cause  of 
his  commitment.  (7)  The  distinction  between  these  cases  is,  that 
in  the  former  there  was  no  document  besides  the  one  produced, 
and  no  other  evidence  of  ihe  fact  in  question  could  be  given,  ex- 
cept perhaps  the  parol  testimony  of  some  person,  who  might  have 
happened  to  be  in  prison  at  the  lime;  but  in  the  last  case,  the 
committitur,  from  which  the  entry  was  inserted  in  the  book,  might 
have  been  produced,  and  that  would  have  been  better  evidence  of 
the  cause  of  commitment,  (m) 

An  entry  in  the   book    kept  at   Lloyd's,  stating   the  capture  of 
Lloyd's.  a  ship,  is  evidence  of  that  fact;  but   such   entry   is  not  a  sufficient 

(1)  R.  V.  Crossley,     2  Esp.  N.  P.  C.         (4)  R.  v.  Martin,   2  Campb.  100. 
524.  (5)  Price  v.    Littlewood,    3   Campb. 

(2)  D'Israeli  v.    Jowet,    I  Esp.   N.     288. 

P.  C  427.  (6)  R.    V.    Aides,    1   Leach,  Cr.  C. 

(3)  Breton    v.  Cope,    Peake,   N.    P.     436. 

C.  30.  Marsh  v.  Colnet,  2  Esp.  N.  (7)  Sake  and  others  v.  Thomas,  3 
P.  C.  665.  I!o9.  &  Pull.  188, 


(r)  See  Note  788,  p.  1152.     (s)  See  Note  789,  p.  1153.      (/)  See  iNoie  7.')0,  p. 
1154.     (w)  f?eeNote  791,  p.  1154. 


Cfi.  6.]  Of  Public  Writings,  not  Judicial.  415 

notice  of  ilie  capture  to  the   defendant,  so   as  to  make   him  h"able  y?"""" '"  Pol^- 

...                                   Ill               omces. 
on  a    policy  of  insurance,    by  which   it  was   agreed,  that  the  loss 

should    be   adjusted,   within   a   certain   time   after   advice  of    the 

capture.  (l)(f)      The  poll-books  taken  at  an  election  for  members  Poll  Book. 

of  parliament,  or  at  the   election   of  a   mayor,  are  admissible  in 

evidence.  (2)(«') 

A  copy  of  an  official  document,  containine;  an  account  of  the  Official  ro- 
cargo  of  a  ship,  made  in  pursuance  of  an  act  of  parliament  by  an 
officer  of  the  customs,  and  lodged  there  as  an  official  document, 
has  been  admitted  as  proof,  that  the  property,  therein  men- 
tioned, was  put  on  board:  (3)  an<l  a  copy  of  an  official  docu- 
ment, containing  the  names,  capacities,  and  descriptions  of  pas- 
sengers on  board  a  vessel,  made  in  pursuance  of  an  act  of  parlia- 
ment, is  good  prorf  of  such  persons  being  on  board.  (4)(a;) 

A  book  in  the  office  of  secretary  of  bankrupts,  containing  Office  of  bank- 
entries  of  the  allowance  of  certificates,  kept  by  order  of  the 
Chancellor,  and  recognized  by  him  as  an  official  document,  ^ 
would  be  good  secondary  evidence  of  the  allowance  of  a  certifi- 
cate; but  a  l.'ook,  containing  such  entries,  is  not  admissible,  if  it 
appear  to  be  kept  merely  as  the  private  memorandum  of  the 
clerks,  without  any  authority  or  sanction  from  the  Chancellor.  (5) 

Books  transcribed  by  officers  of  excise  from  specimen    papers.  Excise-book, 
which  hang    up   in   every  mahhouse,   and   regularly  returned  to 
the    excise-office,  are    admissible  evidence    against   a   maltster, 
though   not   signed    by    him,  'and    though    the   excise-officers  are 
not  called  to  substantiate  the  books  of  proof.  (6) 

A  book,  in  which  leases  were  enrolled,  and  which  was   kept  in  Auditor's 
the  office  of  the  auditor  of  the  Bishop  of  Durham,  has   been  held    "° 
to   be  admissible   evidence  of  a  lease,  after  proof  of  the    loss  of 
the  original  and   the   counterpart;  in   the  case   alluded   to  it  ap- 
peared,  that   the   office   was  conducted   like  a   public   office,  and 

(1)  Abel    V.    PoUs,  3    Esp.  N.    P.  C.     to  have  gone  with  the  sliip. 

•:42.  (4)   Richardson  v.    Mellish,  1    Ry,  & 

(2)  Mead  v.    Robinson,  Wiiles,  424.     Mo.  68.     2  Bing.  229,  S.  C. 

R.  V.  Hughes,  cited,  ib.  (5)   Henry  v.  Leigh,  3  Cainpb.  499. 

(3)  Johnson  v.    Ward,  6  Esp.  N.  P.         (6)  R.  v.  Grimwood,  i  Price,  371. 
C.  47.     The  official  paper   was    proved 


(i;)  See  Note  792,  p.  1154.  (w)  See  Note  793,  p.  1124.  (x)  See  Note  794,  p.  1155. 


-WG  Of  Public  Writings^  not  Judicial        [Cli.  6. 

Boolvs  in  pub-  the  officer  appointed    by  patent,  and    that  tlie   practice  had   been 

he  offices.  Ill  1  ,1  \         c 

to  enrol  leases;  the  enrolnient-book  was  iherefore  considered  as 

a  public  instrument,  and  presumed  to  exhibit  a  correct  copy.  (l)(i/) 

Clerk  of  peace  Books  preserved  in  the  office  of  clerk  of  the  peace,  containing 
enrolments  of  ancient  deputations  of  gamekeepers  for  a  certain 
manor,  are  admissible  in  evidence,  to  show  that  those  persons, 
who  caused  the  enrolments  to  be  made  had  exercised  rights  as 
lords  of  the  manor;  and  they  are  admissible,  without  proof  that 
the  original  deputations  have  been  lost,  or  that  the  gamekeepers, 
named  in  them,  have  acted  under  their  authority.  (2)(z) 


Authenticity 
of  book. 


Prison-book. 


Parish-book. 


In  the  above  cited  case  of  the  King  v.  Aickles,  (3)  the  clerk 
of  the  papers  of  the  prison  produced  a  daily  book,  kept  by  him, 
containing  entries  of  the  names  of  all  the  debtors  and  criminals 
brought  into  prison,  and  of  the  times  when  they  were  discharged; 
but  it  appeared  that  these  entries  were  not  made  by  the  clerk  on 
his  own  knowledge  of  the  facts,  but  generally  from  the  inform- 
ation of  the  turnkeys,  and  frequently  from  the  turnkey's  in- 
dorsements on  the  backs  of  the  warrants,  which  warrants  were 
afterwards  regularly  filed.  Upon  this,  it  was  objected,  that  the 
entries  in  the  books  were  mere  copies,  and  that  the  original 
minutes,  from  which  the  entry  of  the  prisoner's  discharge  had 
been  made,  ought  to  be  produced  as  the  best  evidence.  But  the 
Court  overruled  the  objection,  and  admitted  the  contents  of  the 
book,  as  it  appeared  to  have  been  the  constant  and  established 
practice  of  the  keepers  of  public  prisons  to  register  the  discharge 
of  prisoners  in  such  books  as  the  one  produced,  and  in  the  man- 
ner there  described,  (a) 

In  another  case,  a  parish-register  of  christenings  was  received 
in  evidence  as  an  original  authentic  book,  although  the  constant 
practice  in  the  parish  was  to  make  a  memorandum  of  the  christ- 
enings in  a  day-book  from  which  entries  were  some  time  after- 
wards made  into  the  register.  (4)  The  question  in  that  case  was 
on  the   plaintiff's   legitimacy,   and   on   ilie  part  of  the  plaintiff  a 

(1)  Humble  v.  Hunt,  Holt,  N.  P.  C.  (-1)  May  v.  May,  2  Sir.  1072.  Lee 
601.  V.  Meecock,  5  Esp.  N.    P.  C.  177.     See 

(2)  Hunt  V.  Andrews,  3  Barn.  &  Hughes  v.  Wilson,!  Starkie,  N.  P.  C. 
Aid.  348.  179. 

(3)  Leach,  Cr.  C.  436. 


(V)  Se«  Not*  795,  p.  1155.  (s)  See  Note  796,  p.  1155.  (a)  See  Note  797,  p.  1155. 


Cli.  6.)         Of  Public  Writings,  not  Judicial.  417 

general  parish  register  was  produced, in  which  there  was  an  entry  Rollsof  ma- 

(.   ,  .        ,    .          .  ""        ,          .,  •         ....                                             1      •  •    nor  courts. 
ol   his  chnsiening,    describing  iiim  ni  the   same   manner  as  legiU- 

mate  children  were  usually  entered.  It  appeared,  that  llie  practice 
was  to  make  the  entries  in  this  register  once  in  three  weeks  out  of 
a  day-book,  in  which  entries  were  made  immediately  after  tho 
christening,  or  on  the  same  morning;  and  in  the  case  of  illegiti- 
mate children,  to  insert  in  the  entry  in  the  day-book  the  letters 
B.  B.,  which  were  intended  to  signify  "base  born."  The  counsel 
for  the  defendant  then  offered  in  evidence  the  day-book,  from  which 
the  other  entry  was  posted,  and  in  which  the  letters  B.  B.  were 
inserted,  insisting  that  it  was  the  original  entry.  But  a  majority 
of  the  Judges,  present  on  a  trial  at  bar,  were  of  opinion,  that  such 
evidence  ought  not  to  be  received,  on  the  ground,  that  there  could 
not  be  two  registers  in  the  parish,  and  that  the  one  first  produced 
ought  to  be  taken  to  be  the  true  register. — If,  indeed,  the  entry  in 
the  day-book,  representing  the  plaintiff  as  illegitimate,  had  been 
signed  by  the  reputed  father  or  the  mother,  or  made  under  their 
direction,  such  evidence  would  have  been  admissible,  as  the  decla- 
ration of  a  deceased  parent  on  a  question  of  legitimacy:  but  if,  on 
the  other  hand,  in  the  absence  of  such  proof,  the  entry  appeared  to 
be  merely  a  private  memorandum,  kept  for  the  purpose  of  assisting 
the  clerk  to  make  up  the  register,  (and  of  that  nature  it  seems  here 
to  have  been  considered,)  in  that  case  it  could  not  be  received  as 
the  original  authenticated  entry,  [h] 

The  rolls  of  a  court   baron    (which   is  the   court   of   the   free- Rolls  of  ma- 
holders,)  or  of  the   customary  court    (which  is  the   copyholder's  """^  ^°"''"' 
court,)  are  evidence  between  the  lord  of  the  manor  and  his  copy- 
holders or   tenants.     They    are  the   public   documents,   by   which 
the  inheritance   of  every   tenant  is  preserved,    and  the  records   of 
the  manor  court,    which  was  anciently   a  court   of  justice  relating 
to  all   properly  within   the   manor.  (1)      Ancient  writings,    though  Ancient 
not   properly   court  rolls,    but   found   among  the  court  rolls,   and  ""■"'"§*• 
delivered  down  from  steward    to  steward,    purporting  to  be   made 
"  assensu  omnium  tenentium,''^  have  been  admitted  as  evidence  to 
prove  the   course  of  descent  within   a    manor:  and   this,   althou^-h 
they  were  not   signed   by   any   of  the   tenants.  (2)      An  entry   in 

(1)  Gilb.  Ev.  67.     4  T.  R.  670.  (2)  Denn,  dem.  Goodwin  v.  Spray    I 

T.  R.  466,  473. 


(b)  See  Note  7.'}S,  p.  115G. 

Vol.   I.  5.3 


418 


Of  public  Writings,  rot  Jw^Adal.  [Ch.  6. 


Rolls  of  ma- 
nor courts. 

Customary 
descent. 


Customarj 
estates. 


the  court  rolls,  stating  the  several  customs  within  the  manor  as 
found  hy  the  homage,  and  regulating  the  descent  of  the  several  spe- 
cies of  tenure,  was  in  another  case  admitted  to  be  good  evidence  of 
the  mode  of  descent,  although  no  instances  were  shown  of  any  ten- 
ant having  in  fact  so  taken  under  the  custom:  (1)  this  entry,  record- 
ing the  solenm  opinion  of  twenty-four  homagers,  who  are  the  con- 
stitutional Judges  of  the  court,  delivered  on  an  occasion  when  they 
were  discussing  the  interests  of  all  the  tenants  of  the  manor,  was 
admitted  as  full  proof  of  the  tradition  respecting  the  custom  of  de- 
scent in  the  manor;  which  tradition  and  received  opinion  are  the 
lex  loci.  And  entries,  on  the  court  rolls,  of  admissions  of  tenants 
to  customary  estates,  stating  the  admission  to  be  on  the  determina- 
tion of  the  estate  of  the  last  tenant's  widow,  "  who  held  it  during  her 
chaste  viduily  according  to  the  manor,"  are  evidence  of  a  tenure 
on  that  condition,  although  no  instance  of  forfeiture  for  such  a  cause 
has  occurred.  (2)  In  the  absence  of  such  instances,  the  custom  inust 
be  decided  by  evidence  of  the  form  of  admissions  only.  Those  that 
were  made  durante  casta  viduitate,  if  uncontradicted,  would  be  evi- 
dence that  such  was  the  condition,  on  which  the  estates  in  the  ma- 
nor were  originally  granted;  and  those  that  are  not  necessarily  con- 
tradicted by  the  entries  of  admissions,  generally,  durante  viduilate; 
for  they  might  be  understood  of  a  viduity  according  to  the  custom, 
which  the  other  entries  would  show  to  be  a  chaste  viduily.  (3)  (c) 


Ancient 
writing. 


Upon  the  same  principle,  in  an  action  by  a  copyholder  against 
a  freeholder  of  a  manor  for  surcharging  the  common,  an  old 
writing  found  among  the  muniments  of  the  manor,  and  pur- 
porting to  be  signed  by  many  of  the  copyholders,  stating  that 
the  commoners  of  the  manor  had  an  ancient  unlimited  right  of 
common,  but  that  they  had  agreed  to  a  certain  stint,  was  held 
admissible  evidence  of  the  reputation  of  the  manor  at  that  time, 
as  to  the  general  prescriptive  right  of  common,  against  the 
limited  right  insisted  on  by  the  plaintiff;  and  although  it  was 
not  proved,  that  the  instrument  had  been  signed  by  a  majority 
of  the  copyholders,  or  that  the   plaintiff  held  the  copyhold   tene- 

(1)  Roe,  dem  Beebee  v.  Parker,  (2)  Doe,  dem.  Askew  v.  Askew,  10 
5  T.    R.    26.      Roe,   dem.    Bennet*   v.     East,  520 

Jeffery,  2  Maule  &  Selw.  92.  (3)  By  lA     Ellenborongh,    10  East, 

622 


(c)  See  Note  799,  p.  1156. 


Ch.  6.]     Of  Public  fVriiingSj  not  Judicial.  419 

ments   under  any  one  of  those  who  had   signed,  yet  that    circum-  Terriers, 
stance  could  not  affect  the  admissibilily  of  the  instrument,  which 
was  offered    in  evidence,  not  on  the  footing  of  an  agreement,  but 
as   evidence   of   tradition    and    the    received   opinion    within   the 
manxDr.  (1) 

Terriers  are  of  two  kinds,  temporal  and  ecclesiastical.  It  has  Terriers, 
been  established  by  a  variety  of  cases,  that  old  terriers  or  surveys  of 
a  manor,  are  evidence  of  manorial  tenures  or  boundaries.  (2)  And 
an  ecclesiastical  terrier  is  evidence  of  the  possessions  of  a  church, 
if  it  has  been  regularly  made  and  preserved  in  the  proper  reposi- 
tory. Ecclesiastical  terriers  are  constantly  received  in  questions 
of  tithes:  they  are  ecclesiastical  records,  made  in  perpetuam  rei 
memoriam^  and  are  as  solemn  instruments  as  any  that  can  be  pro- 
duced on  such  subjects.  (3) 

By  the  ecclesiastical  canons,  an  inquiry  is  directed  to  be  made, 
from  tiine  to  time,  of  the  temporal  rights  of  the  clergyman  in  every 
parish,  and  to  be  returned  into  the  registry  of  the  bishop.  This 
return,  whicii  is  generally  signed  by  the  minister,  is  denominated 
a  terrier,  and  derives  its  authority  from  being  found  either  in  the  Custody  of. 
bishops  register  office, (4)  or  the  registry  of  the  archdeacon  of  the 
diocese.  (5)  Unless  it  comes  from  one  of  these  repositories,  it  can- 
not, in  general,  be  admitted  in  evidence.  A  paper,  therefore,  pur- 
porting to  be  a  terrier,  found  in  the  charter-chest  of  a  college, 
which  had  property  in  the  parish,  was  thought  to  be  inadmissible 
to  disprove  a  modus.  (6) 

However,  under  particular  circumstances,  this  rule  respecting  the 
custody  of  the  terriers  has  been  relaxed,  and  a  terrier  has 
been  admitted,  though  not  brought  from  one  of  the  regular  re- 
positories, when  the  custody  in  another  place  has  been  satisfac- 
torily explained.  One  that  was  found  in  the  registry  of  the 
dean  and  chapter  of  Litchfield,  has  been  admitted  in  evidence 
against  a   prebendary.  (7)       This  evidence   was   rejected  at  the 

(1)  Chapman  v.  Cowlan,  13  East,  1454.  3  Anstr.  7S9,  S.  C.  See  Drake 
10.  V.  Sinytli,  ante,  p.  409.  (1) 

(2)  Glib.  Ev.  69.  (6)  4  Gwill.  1406. 

(3)  5  Price,  380,  383.  (7)  Miller  v   Foster,  4    Gvvill.    1406, 

(4)  Atkins  v.  Hatton,  4  Gwill.  HOG.  iL.npd  see  Bullen  v.  ^fifThel,  stated  iu 
2  Anslr.  386,  S.  C.     4  Gwill.  159--.  ch    S^  s.  2,  infra. 

(5)  Potts    V.  Durant,  4  Gwill.  1450, 


420 


Of  Public    Writings,   not   Judicial.     [Cli.  6. 


Terriers. 


Private 
eustody- 


trial;  but  a  new  trial  was  al'tcrwards  granted  by  the  Court  of 
King's  'Bench,  on  the  ground,  that  the  evidence  ought  to  have 
been  received,  as  there  apjoeared  to  be  a  proper  connection  between 
the  terriers  and  the  place  where  it  was  found;  and  a  strong  cor- 
roborating circumstance  was,  that  the  terrier  was  found  annexed 
to  an  old  lease  of  the  prebend,  of  nearly  the  same  date.  (1) 

But  when  the  custody  is  merely  private,  and  unconnected  with 
the  subject-matter,  the  courts  have  never  gone  the  length  of  ad- 
mitting such  papers  in  evidence.  An  instrument,  therefore,  pur- 
porting to  be  an  endowment,  without  the  seal  of  the  bishop,  and 
another  purporting  to  be  an  Inspeximus  of  the  former  under  his 
seal,  were  rejected,  because  they  came  out  of  t^ie  hands  of  a  pri- 
vate person  entirely  unconnected  with  the  matters  contained  in 
them.  (2) 


Evidence  ^^  terrier   is  strong   evidence  against   a  parson;  but   it  is  never 

against  whom.  _  .  .  .'" 

admitted  for  him,  unless  it   be  signed  by  a   church-warden,  or,  if 

the  church-wardens  are  nominated  by  him,  by  some  of  the  sub- 
stantial inhabitants  of  the  parish.  (3)  Old  terriers  signed  by  the 
rector,  church-wardens,  and  other  inhabitants  of  the  parish,  are 
evidence  for  a  succeeding  rector  against  the  land-owners,  on  a 
question  of  farm-modus,  although  they  are  not  proved  to  have 
been  signed  by  occupiers  of  the  farm,  or  by  any  person  from  whom 
the  land-owners  derive  title.  (4) 


Signature.  Terriers  are  generally  signed  by   the   minister   of  the  parish; 

but  this  does  not  appear  to  be  essentially  necessary.  In  a  late 
case,  (5)  on  a  bill  filed  by  a  vicar  against  the  impropriatrix  of  a 
rectory,  for  agistment  tithe,  a  terrier  was  given  in  evidence,  on 
the  part  of  the  vicar,  signed  only  by  the  church-wardens:  it  was 
objected,  first,  that  it  was  not  a  terrier,  because  made  by  the 
church-wardens  alone,  and  not  signed  by  the  vicar;  secondly, 
even  supposing  it  to  be  a  proper  terrier,  yet  that  it  could  not  be 
admitted   in  evidence  in  that   cause  against  the  rector,  as  it    was 

(1)  4  Gwill.  1453.  (4)  Myttoa    v     Harris,  3   Price,    ll>. 

(2)  Potts  V.  Durant,  4  Gwili.  1450.  Wood,  B.  contra. 

(3)  Bull.  N.  P.  24S.  Earl   v.    Lewis,         (5)  lilingworth    v.    Leigh,   4    Gwill. 
4  Esp.  N.  P.  C.  3.  1615.     Potts  v.  Durant,  3  Anstr.  796. 


Ch.  6.]       Of  Public  Writings,  not  Judicial.  421 

nol  signed  by  any  person  claiming  under,  or  on  the  part  of  the 
rector.  However,  the  court  were  of  opinion  that  the  terrier 
was  admissible ;  that  sucli  imperfect  terriers  were  now  uni- 
formly received  ;  that  the  terrier  in  question  was  signed  by 
persons  who  were  in  no  respect  interested,  and  whose  duty  it  was, 
from  their  official  situation,  to  sign  it;  and  that-  the  want  of  the 
vicar's  signature  made  it  stronger  evidence  in  favour  of  his  suc- 
cessor. 

The  ancient  books  of  the  heralds'  office,  (1)  and  their  visit-  Heralds* 
ation-books  of  counties,''(2)  are  evidence  on  a  question  of  pedi-  "°°^^- 
gree.  The  visitation-books  contain  the  pedigrees  and  arms  of  tlie 
nobility  of  the  kingdom  from  the  twenty-first  year  of  Henry  VHI. 
to  the  latter  end  of  the  I7ih  century,  during  which  period 
the  two  provincial  kings  of  arms,  soon  after  their  investiture 
in  office,  usually  received  a  commission  under  the  great  seal, 
authorizing  them  to  visit  the  several  counties  within  their 
respective  provinces,  "  to  take  survey  and  view  of  all  man- 
ner of  arms,  cognizances,  crests,  and  other  like  devices,  wiili 
the  notes  of  the  descents,  pedigrees,  and  marriages  of  all  the  no- 
bility and  gentry  therein  contained;  and  also  to  reprove,  control, 
and  make  infamous  by  proclamation,  all  such  as  unlawfully 
and  without  just  authority  usurp  or  take  any  name  or  title  of 
honour  or  dignity."  The  first  of  these  commissions  was  issued  in 
the  twenty-first  year  of  Henry  VHI.,  and  the  last  in  the 
second  of  James  11.  (3)  From  these  visitation-books,  entries 
were  afterwards  made  into  the  books  kept  by  the  college  of  her- 
alds. 

A  licence  from  the  Pope,  granted  in  the  reign  of  Edward   K.,  Pope's  bull, 
has  been  adjudged,  in  an   old   case,  to   be  evidence  of  an  impro- 
priation,   the    pope     being    formerly    the    supreme    head    of  the 
church,   and   having  the   disposition  of  all  spiritual  benefices.  (4) 
For  the   same  reason,   a   Pope's  bull   was   formerly   admitted   in 

(1)  King  dem.   Lord   Thanet  v.    Fos-         (3)   See  First  Report  of  the  House  of 
ter,  2  Jon.  224.  Commons  on  the  Public   Records,  p.  82. 

(2)  Pilten    v.    Walter,    1    Str.    ICl.     Appendix,  (c.  8.) 

Matthews  v.  Port,  Comb.  C3.  (4)  Cope  v.  Bedford,  Palm   427. 


422 


Of  Public  Writings,  not  Judicial, 


[Ch.  6. 


Corporation 
booki. 


Tolls. 


evidence  to    show  that   monastery  lands   had   a  special  exemption 
from  llie  payment  of  tithes.  (1) 

Corporation-books,  containing  an  account  of  the  privileges  or 
public  transactions  of  the  body,  are  evidence  in  a  suit  between 
the  several  members,  on  the  same  footing  as  manor-books  between 
the  tenants  of  a  manor.  But  they  are  not  evidence,  in  favour 
of  a  corporation,  to  support  a  claim  of  right  against  a  stranger;(2) 
as,  vvhere  a  right  to  certain  tolls  is  claimed  by  a  corporation, 
entries  in  the  corporation-books,  respecting  payments  made  by 
individuals  in  former  times,  are  not  admissible,  on  the  part  of  the 
corporation,  against  a  party  who  contests  the  right  to  tolls;(3)  for 
such  entries  relating  to  the  private  interests  of  the  corporation,  and 
being  of  a  private  nature,  cannot  be  evidence  for  the  party  to  whom 
the  books  belong,  (d) 


Public  right. 


Tithes. 


On  a  question  of  public  right,  such  as  the  right  of  swearing  and 
admitting  freemen,  &,c.,  corporation-books  are  admissible.  (4)  And 
on  a  question  of  tithes  also,  (in  which  the  books  of  a  former  rector 
are,  in  some  cases,  admissible  in  evidence  for  the  successor,)  entries 
made  in  the  books  of  an  ecclesiastical  corporation  aggregate  are  ad- 
missible, if  they  would  be  properly  admitted  from  the  books  of  a  sole 
ecclesiastical  corporation.  On  such  a  subject  the  rule  must  be  the 
same,  whether  the  corporation  consists  of  one  or  many.  (5) 


GustodT  of.  The  books   of  a  corporation  cannot  be  admitted   in  any   case, 

unless  shown  to  have  been  regularly  kept  by  the  proper  officer  of 
the  corporation,  (e)  On  an  information  in  the  nature  of  a  quo 
warranto,  the  prosecutor  produced  in  evidence  a  book  written 
by  the  prosecutor's  clerk,  not  an  officer  of  the  corporation, 
which  appeared  to  be  only  minutes  of  corporate  acts  done  soma 
years  before,  and  was  not  kept  as  a  public  book  of  the  corpora- 
tion; this    evidence    was    rejected    at  the   trial,  and,  on  a  motion 

(1)    Lord    Clanricard's     case,  Paiiii  (3)  Maniage    v.    Lavvrence,   3  Barn. 

37.  &,    Aid.    !42.       Another   case    to    illus- 

('2)   1    II.  Black     2U,  n.  (c),    Mayor  trale  the  same   principle  is  R.  v.    De- 

of  London    v.   Mayor   of  Lynn.     In    the  benhain,  2  Barn    >!  Aid.  185. 

case    of   the      Mayor    of    Kingnton-on-  (4)   Case     of    Gibhon,    upon    a   quo 

Hull  V.    Horner,    Cowp     102,  such  evi-  «jarra«/o,  17  Howell's  St.  Tr.  SIO,  S54. 

dence    was    received    by    consent;    see  (5)   Short    v.    Lee,  2    Jac     ^c  W'aik. 

1  H.  Bl.  214.                     ■  470,  476,  479. 


(d)  Sea  note  800,  p.  11 56.     (c)  See  Note  801,  p.  1169 


Ch.    6.]      Of  Public   Writings,  not  Judicial.  4'23 

afterwards  for  a  new  trial,  the  Court  held  thai  it  had  been  |)roperly 
rejected.  "Corporation-books,"  the  Court  said,  "are  generally 
allowed  to  be  given  in  evidence,  when  they  have  been  publicly  kept 
as  such,  and  when  the  entries  have  been  made  by  the  proper  offi- 
cer; not  but  that  entries  made  by  other  persons  may  be  good,  if  it 
be  shown  that  the  town-clerk  is  sick,  or  refuses  to  attend."  (l)(/) 

"  A  general  history  may  be  admitted,"  says  Mr.  Justice  Culler,  Histories. 
"  to  prove  a  matter  j'tlating  to  the  kingdom  at  large."  (2)  Thus, 
in  t!,e  case  of  St.  Katharine's  Hospital,  Lord  Halo  allowed 
Speed's  Chronicles  to  be  evidence  of  a  particular  point  of  history 
in  the  time  of  Edward  HI.  (3)  And  the  same  book  was  adfniited 
as  evidence  of  the  death  of  Edward  the  Second's  queen,  in  the 
case  of  Lord  Brounker  v.  Sir  R.  Atkins,  (4)  where  Ch.  J.  Pember- 
ton  said  he  knew  not  what  better  proof  they  could  have.  Histories, 
however,  it  is  admitted,  cannot  be  received  as  proof  of  a  private 
right  or  particular  custom.  (5)  Camden's  Britannia  was  therefore 
rejected  on  an  issue,  whether  by  the  custom  of  Droitwich, 
salt-pits  could  be  sunk  in  any  part  of  the  town,  or  only  in  a  cer- 
tain place.  (6)  And  in  another  case,  where  the  question  was, 
whether  a  particular  abbey  was  of  the  inferior  order,  Dugdale's 
Monasticon  was  refused,  because  the  original  records  might  be 
had  in  the  augmentation  office.  (6)  So,  it  has  been  determined, 
that  Dugdale's  Baronage  is  not  evidence  to  prove  a  descent.  (7)(^) 

A  question  arose,  on  the  impeachment  of  Warren  Hastings,  as 
to  the  con)petency  of  proving  a  national  custom  by  a  general 
history.  The  managers  for  the  Commons  wished  to  prove  the 
customs  in  Hindostan,  respecting  the  treatment  of  women  of 
rank;  and,  for  this  purpose,  proposed  to  read  extracts  from  the 
History  of  the  Growth  and  Decay   of  the  Ottoman   Empire,   by 


(1)  R.  V.    Mothersell,  1    Str.   92.   12  (4)  SUin.  14. 

Vin.  Abr.   Evidence,  (A.  b.  15.)  pi.  16.  (5)  Bull.    N.    P.    248.     Cockman   t. 

17  Howell's  St.  Tr  S54.  Mather,  1   Barnardist.  14. 

(2)  Bull.  N.  P.  248.  (6)    1  Salk.  282.      Skin.  623. 

(3)  I    V'ent.    151.     Stniner    v.    Bur-  (7)   Piercey's  case,  2  Jon.  164. 
gesses  of  Droitwich,  1    Salk.  2S2.  Skin. 

623,  S.  C. 


(/)  See  Note  802,  p.  1159.     {§)    See  Note  803.  p.  1161. 


424  Of  Public  Writings^  not  Judicial.      [Ch.  6. 

Prince  Demetrius  Cantemir.  (1)  The  counsel  lor  the  defendant 
objected,  that  it  would  be  first  necessary  to  lay  some  ground  for  the 
production  of  this  evidence;  at  least,  it  should  be  shown,  that  the 
laws  and  customs  of  Constantinople  were  the  same  as  those  of 
Hindostan;  and  even  then,  they  said,  it  might  admit  of  considerable 
doubt,  whether  such  a  history  could  be  admitted  in  evidence. 
After  argument  on  the  part  of  the  managers  of  the  Commons,  the 
House  of  Lords  informed  them,  that  if  the  passage  which  it  was 
proposed  to  produce  from  Cantemir's  History,  went  to  prove  an 
universal  custom  of  the  Mahommedan  religion,  the  managers  might 
read  it.  Two  extracts  from  the  book  were  accordingly  read,  (/i) 
Proof  of  entry  With  regard  to  the  proof  of  entries  in  public  books,  it  is  now 
booke'''"  clearly  settled,  that   wherever   an   original   is   of  a  public   nature 

and  admissible  in  evidence,  and  examined  copy  will  equally  be 
admitted.  (2)  (i)  This  rule  is  necessary,  as  well  for  the  security 
of  the  document,  as  for  the  convenience  of  the  public.  Examined 
copies,  therefore,  of  entries  in  the  Journals  of  the  Lords  or 
Commons,  (3)  or  of  entries  in  the  Council-book  in  the  Secretary 
of  Slate's  office,  (4)  or  of  entries  in  the  Bank  books,  (5)  (j)  or  in 
the  books  of  the  East-India  Company,  (6)  and  examined  copies 
of  entries  in  parish  registers,  or  in  the  books  of  assessments 
made  by  the  commissioners  of  land  tax,  (7)  or  in  the  books  of  the 
commissioners  of  excise,  (8)  or  in  the  court-rolls  of  a  manor,  (9) 
(k)  or  in  poll-books  of  an  election  of  a  mayor  or  a  member 
of  parliatnent,  (10)  and   examined   copies  in  other   cases  of  the 

(1)  Extract  from  a  report  of  the  (4)  Eyre  v.  Palsgrave,  2  Campb. 
proceedmgs,    on    the   impeachment,   in     606. 

the    possession    of   T-    Jones    Howell,  (5)  Marsh  v.    Colnet,   2    Esp.    N.  P. 

Esq.,   the   editor  of  the    valuable    new  C.     665.      Breton     v.    Coape,    Peake, 

collection    of  State     Trials,    to    whose  N.  P.  C.  30.     Auriel    v.  Smith,  18  Ves. 

kindness  the   author  is   indebted   for  the  198,  204. 

point    above    stated.     The    question  oc-  (6)   2  Doug.  593,  n.  (3). 

cuired    on    the    22d    of    April,    1788.  (7)  R.  v.  Binn    and   others,   2  T.  R. 

The    point    was    referred    to,    by    Lord  234. 

Ellenborough,    on    the    trial  of    General  (8)  Caith.  346.     R.    v.  Commission- 

Picton.     See  30   Howell's  State  Trials,  ers  of  Land-tax,  2  T.  R.  234. 

p  492.  (9)  Tuckney    v     Flower,   Comberb. 

(2)  Holt  C.  J.  in  Lynch  v.  Gierke,  137.  R.  v.  Haines,  ib.  337,  by  Holt 
3  Salk.  153.  R.  v.  Haines,  Comberb.  C.J.  Doe.  dem.  Churchwardens  of 
337.     Skin.  583,  S.  C.  Croydon  v.  Cook,  5  E.sp.  N.    P.  C  221. 

(3)  Jones  v.  Randal,  Cowp.  17.  Doe,  dem.  Bennmgton  v.  Hall,  16  East, 
R.  V.  Lord  G.    Gordon,    2    Doug.    593.     208. 

The  printed    Journals  are    not  evidence.         (10)  Mead  v.  Robinson,  WiUes,  424. 


(h)  SeeNote804,  p.  1162.     (t)  See  Note   805,  p.    1165.     k  j)  See  Note  806, 
p.  1165.     (fc)  See  Note  807,  p.  1166. 


CI).  7.]     Of  the  Inspection  of  Public  Writings.  425 

same  kind  have  been  admitted  in  evidence,  when  the  original 
hooks  themselves  would  have  been  admissible.  But  where  an 
original  is  of  a  private  nature,  a  copy  will  not  be  evidence,  unless 
the  original  is  lost,  or  destroyed,  or  in  the  possession  of  the  opposite 
parly.  Thus,  the  copy  of  an  old  letter,  brought  from  the  chest  of 
a  corporation,  has  been  refused.  (1)  In  one  case,  indeed,  where 
the  original  was  kept  in  the  Bodleian  library  at  Oxford,  and  by  the 
statutes  of  the  University  not  removable,  an  examined  copy  was 
allowed  to  be  given  in  evidence;  (2)  the  Court  admitted  the  case 
not  to  be  within  the  general  rules  of  evidence,  but,  under  the  par- 
ticular circumstances,  permitted  the  copy  to  be  read.  (1) 

(1)  R.  V.  Gwyn,  1  Str.  401.  (2)    Downes  v.    Moreman,  2   Gwill. 

659.     Bunb.  189,  S.  C. 


(0  See  Note  808,  p.  1166. 

CHAP.  VII. 

Of  the  Inspection  of  Public  Writings. 

Records. 
The  judicial  records  of  the  king's  courts  are  safely  kept  for  the 

public  convenience,  that  any  subject  may  have  access  to  iheiu 
for  his  necessary  use  and  benefit,  which  was  the  ancient  law  of 
England,  and  is  so  declared  by  an  act  of  parliament  in  the  forty- 
sixth  year  of  Edward  III.  (I) 

Copy  of  in- 
Some  restriction,  however,  of   the  general  right  of  inspecting  diciments. 

records  has  been  thought   necessary  in   the  case  of   an  acquittal 

on   a    prosecution   for   felony  ;    in   which   case,   if  the  trial   is   at 

the  Old    Bailey,  a   copy  of  the   indictment  cannot    regularly   be 

obtained  without  an   order  from   the  Court;  and  it  is   a  common 

practice,   on   the  circuits,   to   apply   to   the  Court  for   a  copy,  atQrderfor 

the  time  of  the   trial.      This   practice  appears   to  have   been   first 

adopted   at   the  Old    Bailey,    in   pursuance    of  an  order    made 

by  some  of  the   Judges,  for  the   regulation  of  those   sessions,   in 

(1)  3  Inst.  71.     Pref.  to  3d    Rep.  p.    3,4.     See    Sir   R.    Grabame's  Trial,    12 
Howell's  St.  Tr.  659. 

Vol.  I.  54 


426  Of  the  Inspection  of  Public  Writings.      [Ch.  7. 

In  eaw  of  ihe  twentv-sixlli  year  of  Charles  II.  (1)  It  was  ihen  ordered, 
"that  no  copies  of  any  indictment  for  felony  be  given  without 
special  order,  upon  motion  made  in  o|)cn  court,  at  the  general  gaol 
delivery:  for  the  late  frequency  of  actions  against  prosecutors, 
which  cannot  be  without  copies  of  the  indictment,  deterreth  people 
from  prosecuting  for  the  king  upon  just  occasions."  f?lnd  Lord 
Holt  has  laid  it  down  as  a  general  rule  of  law,  that  if  a  person  be 
indicted  for  felony  and  acquitted,  and  means  to  bring  an  action 
(without  sufficient  cause,)  the  Judge  will  not  permit  him  to  have 
a  copy  of  the  record,  and  he  cannot  have  a  copy  without  leave. 
(2)  (m)  In  the  case  of  Vandercomb  and  AbboJt,  (3)  the  priso- 
ners after  their  acquittal  applied  for  copies  of  the  several  indict- 
ments, for  the  purpose  of  assisting  them  in  their  plea  of  autrefois 
acquit  :  the  Court,  however,  refused  to  grant  them  copies,  but 
ordered  the  officer  to  read  over  the  indictments  slowly  and  dis- 
tinctly, which  was  accordingly  done. 

The  rule  of  the  Judges  states,  that  an  action  against  a  prosecu- 
tor cannot  be  maintained  without  a  copy  of  the  indictment,  and 
that  a  copy  is  not  to  be  given  without  an  order  from  the  Court ; 
but  it  is  not  to  be  inferred  from  this,  that  an  order  is  essentially 
necessary  for  the  introduction  of  a  copy  in  evidence,  or,  if  a  copy 
were  offered  to  be  produced  without  an  order,  that  it  could  on  that 
account  be  properly  rejected.  The  admissibility  of  such  evidence 
has  been  determined  in  the  case  of  LegaJS  v.  Tollervey.  (4)  (n) 

In  case  of  -pjjg  j.^jg    vvhich-lias  been  before  mentioned,  is  confined  to  cases 

misdemeanor.  .  -  .     ,  i        j    r     j         • 

of  felony.     In    prosecutions    for  nusdemeanors,    the   delendant  js 

still    entitled    to   a   copy    of   the    record,  as   a    matter   of  right, 

without  a  previous   application  to  the  Court.  (5)      So,  in  the  case 

of    a   conviction    by   a    magistrate,    the   defendant  is  entitled  to  a 

(1)    Directions   for     Justices    at    the  punished    for   refusing    to    mal<e     out  a 

Old  Bailey,    prefixed  to   Kelyng's    Rep.  copy. 

p.  3.    order   7.      See   Brangam's   case,  (2)  In  the    case  of  Dr.    Groenvelt  v. 

1    Leach,    Cr.    C.    32.      In    this    case.  Dr.  Burvvell    and    o'.hers,    1    Ld  Raym. 

Willes,  C.  J  ,  is  reported    to  have    said,  253. 

that,  by  the    laws  of    the    realm,    every  (3)   2  Leach,  Cr.  C.  821. 

prisoner,  upon  his    acquittal,    has  an  un-  (4)    14  East,  302. 

doubti-d    right    and    title   to    a    copy   of  (5)   Morrison  v.  Kelly,  1  Black.  Rep. 

the  record,  for   any  use  which   he    may  3S5.     Evans  v.    Phillips,  reported   from 

think  fit  to    make  of  it;  and   that,    after  MS.  in  Selw.  Ni.  I'ri.  952. 
a  demand,  the    proper    officer   might  bo 


(m)  See  Note  809,  p.  1166.     (n)  Sea  Note  810,  p.  1167. 


Ch.  7.]   Of  the  Inspection  of  Public  Writings.  427 

copy  of  ihe  conviction,  in  order  to  defend  himself  against  an 
action  for  the  same  offence;  and  if  it  should  be  refused,  and  the 
defendant  in  consequence  sue  out  a  writ  of  certiorari,  merely  for 
the  purpose  of  procuring  a  copy  and  making  his  defence,  the 
magistrate  will  be  compelled  to  pay  his  own  costs  of  returning 
the  conviction.  (1)  The  conviction  may  be  drawn  up  at  any 
time,  before  the  return  to  the  certiorari  or  to  the  sessions,  though 
after  a  commitment,  (2)  or  after  the  levying  of  the  penalty  (3). 
And  the  conviction  returned  to  the  sessions,  or  to  the  Court  of 
King's  Bench,  is  the  only  one,  of  which  those  courts  will  take  ju- 
dicial notice.  (4) 

A  defendant  on  a  criminal  charge  is  not  entitled  to  an  inspection  lospection  of 
of  the  grotmr!?,  upon  which  the  prosecution  has  been  instituted. 
In  some  s|>ecies  of  treason,  indeed,  the  prisoner  is  entitled  to  a  copy 
of  the  indictment,  a  privilege  not  allowed  by  the  common  law,  but 
conferred  by  act  of  parliament;  (o)  but  neither  in  cases  of  treason 
nor  of  felony  has  he  any  right  to  a  copy  of  the  depositions  of  wit- 
nesses, who  are  to  appear  against  him. 

When  inforn^ations  are  filed  by  the  Attorney-General,  on  depo- 
sitions taken  under  the  excise  laws,  the  defendant  is  not  allowed 
to  inspect  those  depositions.  And  in  a  case  where  an  information 
was  filed  against  an  officer  of  the  East-India  Company,  on  charg- 
es of  delinquency  founded  upon  the  report  of  a  board  of  enquiry 
in  India,  the  Court  of  King's  Bench  were  of  opinion,  that  the 
defendant  had  no  right  to  have  an  inspection  of  that  report,  and 
that  the  Court  had  no  discretionary  power  to  grant  it.  (5)  "  The 
practice  on  indictments  at  common  law,  and  on  information  upon 
particular  statutes,"  said  Mr.  Justice  Buller  on  that  occasion, 
*'  shows  it  to  be  clear,  that  tlie  defendant  is  not  intiiled  to  inspect 
the  evidence,  on  which  the  prosecution  is  founded,  till  the  hour 
of  trial." 

The    right    of    inspecting    the    oroceedings    of   inferior  juris-  Proccodings  of 

....  ]•     •       1  T  '  I  r  I        •        inferior  juris- 

dictions IS  more    limited.       It    cannot  be    necessary    lor    the  in-  dictions. 

(1)  R   V.  Midiam.  3  Burr.  1721.  (3)  R.  v.  Barkrr,  1  East,  1S6. 

(2)  Massey  V.   Johnson,  12   F.ast,  67.         (4)  Ibid.  188. 

82.     16  East,  20.  ,  (3)  R.  v.  Hollnnd,  4  T.  R.  691. 


(o)  riee  No'e  Sll,  p    1 167. 


428  Of  the  Inspection  of  Public  Writings.   [Cii.  7. 

terests  of  the  public,  that  they  should  be  open  for  inspection  to  all 
persons  without  distinction;  but,  on  the  other  hand,  it  seems  rea- 
sonable, that,  in  any  suit,  where  the  regularity  of  those  proceed- 
ings may  come  into  question,  a  party  should  have  the  power  of 
taking  a  copy  of  such,  as  have  been  instituted  against  himself.  In 
an  action  of  trespass  and  false  imprisonment,  brought  by  the  plain- 
tiff, who  had  been  sued  in  the  Court  of  Conscience  in  London, 
the  Court  of  King's  Bench  allowed  the  plaintiff  to  inspect  the  pro- 
ceedings, so  far  as  they  related  to  the  suit  against  himself,  on  the 
ground  that  every  one  has  a  right  to  look  into  the  proceedings  to 
which  he  is  a  party.  (1)  In  another  case,  where  the  plaintiff,  hav- 
ing been  fined  for  neglect  of  duty,  as  an  under-officer  to  the  com- 
missioners of  lieutenancy  for  the  city  of  London,  brought  an  ac- 
tion of  trespass  against  the  defendant  for  distraining  upon  him, 
the  Court  granted  the  plaintiff  a  rule  for  inspecting  and  taking 
copies  of  the  rates  and  assessments  made  by  the  commissioners.  (2) 
On  the  same  principle,  in  an  action  for  a  malicious  prosecution 
and  false  imprisonaient,  the  plaintiff  may  obtain  a  rule  for  a  copy 
of  the  information,  upon  which  he  was  committed;  and,  as  the 
original  itself  ought  to  be  produced  at  the  time  of  the  trial,  the 
Court  will  also  grant  a  rule,  calling  upon  the  committing  magis- 
trate to  cause  it  to  be  produced.  (3)(/)}  ^ 

Parish-regis-         Parish-registers,  boqks   of  the    India  Company  relating   to  the 
lers  and  other  f     ^  ^j^^j.     ^ooks   of  the  Bank,    &c.,    are  for  some  pur- 

public  books.  '  ,  . 

poses  considered  as  public  books;  and  persons  mterested  in 
them  have  a  right  to  inspect  and  take  copies  of  such  parts 
as  relate  to  their  interest.  (4)  So  the  books  of  the  commis- 
sioners of  the  lottery,  and  their  numerical  lists,  are  of  a  public  na- 
ture: and  kept  by  the  commissioners  in  trust  for  the  ticket-holders, 
who  are  entitled  to  an  inspection,  by  rule  of  court.  (5) (7) 

(1)  Wilson  V.  Rogers,  2  Str.  1242.         421,491,8.  C.     Avery  v.   Dickenson, 

(2)  Edwards   v.    Vesey,  Rep     temp.     Say.  250. 

Hard.  128.  (4)  Geery  v.   Hopkins,  2  Ld.  Raym. 

(3)  K.  V.  Smith,  1  Stra.  126.  Sol.  Warriner  v.  Giles,  2  Stra.  954. 
Welsh  V.  Richards,  Barnes  468.  S.  P.  Mayor  of  London  v.  Swinland,  1  Bar- 
Herbert    V.     Ashburner,    1    Wils.    297.  nardist.  454. 

Moody     V.     Thurston,     1     Stra.     304,  (5)  Schinotti  v.  Bumstead    and  oth- 

and  R.  v.    Commissioners  of  Land-tax,  ers,  cited  from  a  MS.  case,  in   2  Tidd'a 

2  T.  R.    234.     See   Groenvelt    v.   Bur-  Prac.  596. 
well,  IjLd.    Raym.    253,454.     Carth. 


{py  See  Note  812,  p    1167.     (.;)  Sec  Note  313,  p.  1168. 


Ch.  7.]         Of  the  Inspection  of  Public  Writings.  4*29 

Access  is  not  allowed  to  such  parish-books  as  are  kept  only 
Tor  the  private  use  of  the  parish  and  relate  to  tlieir  private 
interests.  An  inspection  was,  for  that  reason,  refused,  in  an 
action  of  ejectment  by  an  impropriator  against  the  church- 
wardens of  a  parish,  where  a  rule  was  applied  for,  on  the  part 
of  the  plaintiff,  suggesting,  that  the  parish-books  would  make 
the  titles  appear,  and  that  they  were  the  common  books  belong- 
ing to  the  parish  at  large:  but  the  court  were  of  opinion,  that, 
when  the  person  claims  a  distinct  interest  from  that  of  the 
parish,  it  is  not  reasonable  to  compel  the  parish  to  discover 
their  title  by  showing  their  books,  which  are  kept  only  for  their 
own  use.  (1)  For  the  same  reason,  a  public  company  will  not 
be  compelled  to  produce  any  books  relating  to  their  private 
transactions.  (2) 

Nor  will  access  be  granted  to  the  books  of  public  offices,  in  Books  of 
collateral  actions  brought  by  persons  who  have  no  interest  in  the  ^" 
books;  therefore,  in  a  qui  tarn  action  for  penalties  against  a  clerk 
in  the  post-office,  for  interfering  in  the  election  of  a  member  of 
parliament,  the  prosecutor  was  not  allowed  to  have  a  rule  for 
inspecting  the  books  of  the  post-office,  as  the  cause  did  not  relate 
to  any  transaction  in  the  post-office,  for  which  transactions  alone 
those  books  are  kept.  (3)  Nor  will  the  Court  grant  a  rule  for 
inspecting  the  custom-house  books,  for  the  purpose  of  furnishing 
evidence  in  an  action  between  two  persons,  who  have  no  interest 
in  the  subject  matter,  concerning  the  amount  of  a  particular  branch 
of  the  public  revenue.  (4) 

The  court-rolls  of  a  manor  are  kept   in  the  custody  of  the  lord  ^°"^  °^ 

1  •  1  r  1  c    1       1       I      .  ,  .       manor  courts. 

or  his  steward,  not  lor  the  use  of  the  lord  alone,  but  as  the 
common  evidence  of  the  manorial  rights,  to  which  evidence  all 
the  tenants  of  the  manor,  whether  copyhold  or  freehold,  have 
an  undoubted  right    of  access,  as    well  in    actions  between    the 

(1)   Cox    V.    Copping,    5    Mod.    :395.  (2)   Shelling  v.    Farmer,   I  Stra.   6-16. 

1    Ld.    Raym.    337.     Lewis   v.   Baiier,  Alurray  v.  Thorliill,  2  Stra.  717. 

1      Baruardist.     100.       Turner   v.     (le-  (3)   Crew  q,    t.    v.    Blackburn,  cited 

thin.Vin.    Ab.    tit.    Evidenci",  (F.    b.)  1    Wils.    240.     2   Htra.    1005,  S.  P. 

pi.    11.      As    to    the   inspeciion    of  the  (4)  Alhorfold  v.  Beard,  2  T.  R.  614. 

proceedings     before     conjmissioncrs    of  616. 
bankrupt,  see  vol.  ii.  p.  2. 


^^^  Of  the  Insprction  of  Public  Writings.       [Cli.  7. 

tenants  and  the  lord,  as  between  the  tenants  themselves;  (1)  and  it 
is  now  a  matter  of  course  to  grant  a  rule  for  the  inspection  of  the 
court-rolls  and  ancient  writings  of  a  manor,  on  the  application  of  a 
tenant,  who  has  been  refused  by  the  lord. 

Who  may  in-        This    privilege  of  inspection  is  confined  to   the   tenants  of  the 

spoct.  1 

manor,  and  does  not  extend  to  third  persons,  who  have  no  concern 
or  connection  with  the  manor-court  or  the  court-rolls.  Thus,  in 
an  action  of  trespass,  where  the  question  was,  whether  the  place, 
in  which  the  trespass  was  alleged  to  have  been  committed,  was 
within  the  manor  of  the  plaintiff,  or  part  of  a  manor  claimed  by 
the  defendant,  the  Court  held,  that  the  defendant,  who,  as  it  ap- 
peared from  his  affidavit,  was  not  a  tenant  of  the  plaintiff's  manor 
nor  claimed  any  interest  under  him,  could  not  be  entitled  to  an  in- 
spection. (2)  And  it  may  be  laid  down  as  a  general  rule,  that 
where  the  question  is  on  the  custom  of  a  manor  between  the  loril 
and  a  stranger,  the  lord  will  not  be  obliged  to  let  him  have  an  in- 
spection of  the  rolls,  because,  in  a  dispute  with  a  stranger,  they 
may  be  considered  as  his  private  evidence:  but  if  the  dispute  is 
between  tenants  of  the  manor,  or  between  the  lord  and  a  tenant, 
the  lord  shall  produce  the  roll,  and  peruiit  copies  to  be  taken. 

Corporation-  Corporation-books  are  open  to  the  members  of  the  corporation, 
as  court-rolls  are  to  the  tenants  of  the  manor. *(r)  Thus,  where  a 
mandamus  had  been  granted,  to  admit  a  person  into  a  corpo- 
ration, and  by  the  returns  it  appeared  to  be  a  question,  vvhetlier 
the    master,  under  whom  he   had  served,    had  been  admitted  to 

(1)     Roe    V.    Aylmer,    Barnes,  236.         (2)  Talbot    v.   Villeboys,  cited   from 

Hobson  V.  Parker,    ib.  257.     Addinglon  MS.  by    Duller  J.   3  T.  R.  142.     Smith 

V.    Clode,  2  Black.    Rep.  1030.      Folk-  v.  Davies,  1  VViU.    104.    Bp.    of  Here- 

ard  V.  Hemet,  ib.  1061.     R   v.    Shelley,  ford  v.   D.  of  Bridgewater,  Bunb.  269. 

2  T.  R.  141.  R.  V.  Lucas,  10  East,  235.  Attorney-General  v.    City  of  Coventry, 

Baleman   v.  Phillips,  4  Taunt.  162.  Bunb.  290. 


♦By  Stat.  32  G.  3,  c  53,  s.  4,  a  penalty  of  a  hundred  pounds  is  incurred 
by  an  ofHccr  of  the  corporation,  having  the  custody  of  the  corporation  re- 
cords, who  sh.iU  refuse  to  allow  any  other  officer  or  member  to  inspect  books 
nnd  papers,  wherein  are  entered  thd  adnii.-^sioii  or  swearing  in  of  the  friieinen, 
burgesses,  or  members  of  the  curporation,  and  to  take  copies  or  minutes  of 
such  admission,  &,c.  Books,  containing  orders  for  the  admission  nnd  swear- 
ing in  of  the  burgesses,  are  not  within  the  provisions  of  the  statute.  Davies 
V.  Humphreys,  3  Maule  &  Selwr.  223. 


(r)  See  Note  814,  p.  116S. 


Ch.   7.]      Of  the  Inspection  of  Public   Writings,  431 

his  freedom  in  the  corporation,  a  rule  was  moved  for,  on  the  part  of 
the  person  claiming  admission,  to  inspect  the  books  of  the  corpora- 
lion;  and  the  court  held,  that  every  member  has  a  right  to  in- 
spect and  take  copies  of  corporation-books  for  any  matter  that  con- 
cerns himself,  even  in  a  dispute  with  strangers;  but,  as  the  return 
bad  pointed  out  the  necessity  of  inspecting  them  for  a  particular 
purpose,  the  rule  should  be  confined  to  such  books  as  contained 
the  admissions  of  freemen.  (I) 

Where  an  information  in  the  nature  of  a  quo  warranto  had  been 
obtained,  at  the  relation  of  corporators,  against  a  person  charged 
with  unlawfully  holding  a  corporation-ofBce,  the  Court  held,  that 
these  relators  were  entitled  to  inspect  the  books,  and  that  the  rule 
should  be  limited  to  the  inspection  of  such  papers,  as  related  to  the 
subject-matter  in  discussion.  (2)  And  in  an  action  for  the  breach 
of  a  bye-law,  restraining  all  but  freemen  from  exercising  trades 
within  a  corporate  city,  the  Court  will  compel  the  corporation  to 
allow  the  defendant  to  inspect  the  bye-law  in  their  books.  (3) 

This  right  of  inspecting  the  muniments  of  a  corporation  is  con-  Who  may 
fined  to  the  members  of  the  corporate  body.  A  stranger  has  no 
better  right  to  inspect  corporation-books,  than  to  inspect  the  books 
of  any  private  person.  On  a  prosecution  against  a  person  for 
practising  physic,  (not  being  a  member  of  the  college  of  physi- 
cians, nor  having  a  licence,  not  being  a  graduate  of  either  univer- 
sity,) the  defendant  moved  for  leave  to  inspect  the  book  of  the  col- 
lege of  physicians;  but  the  Court  refused  to  grant  the  rule,  as  the 
defendant,  who  was  not  a  member,  had  no  right  to  see  the  book.  (4) 
And  in  an  action  of  trespass,  where  the  defendant  justified  under  a 
corporation  for  cieslraining  for  a  toll,  the  Court  refiised  a  similar  rule 
to  the  plaintiff',  who  was  a  stranger  to  the  corporation.  (5)'(s) 


(1)  11.   V.   Fraternity  of  Hostmen    in  (4)  Dr.    West's    case,  cited    1    Wils. 
Newcastle,  2  Stra.  1222.  240.     Alien    v.  Tapp,    2    Black.   Rep. 

(2)  R.    V.     Babb,    3     T.    R.     579.  8.50. 

Crew  q.  t.  V.  Saunders,  2  Str.  1005.  (5)  Cited  by  De  Grey,  C.  J.,  in 
Corpoiation  of  Barnstaple  v.  Lathey,  Hodges  v.  Atkis,  3  Wils.  398,  and  by 
3  T.  R.  303.  Young  v.  Lynch,  1  Lawrence,  J  ,  in  8  T.  R.  594.  May- 
Black.  Rep.  27.  or  of  Southampton  v.    Graves,  8   T.  R. 

(3)  Harrison  v.  Williams,  3   Barn.  &  590. 
Cress.  162. 


(s)  See  Note  816,  p.  1168. 


^^^  Of  the  Inspection  of  Public  fVritings.     [Ch.  7. 

A  different   practice    was    nt   one   lime   introduced   in  courts  of 
law,  (1)  upon  the  ground,  that,  on   filing  a  bill   for  disclosure  in  a 
court  of  equity,  an   inspection    would   be  granded   as   a   matter  of 
course,  and  that  it  would   only  cause  unnecessary  expense  to  send 
the  parties  into  that  court.      But  this  practice,  which  was  not  war- 
ranted by  earlier  authorities,  (2)  nor  comformable  to  the  practice  of 
courts  of  equity,  has  been  long  discontinued;  and  the  rule  of  law, 
now  established,  is,  that  in  disputes  between  several  members  of  a 
corporation  an  inspection  of  the  corporation-books  will  be  granted, 
because  each  has  a  right   to  see  them;  but   an  inspection   will   not 
be  granted  in  the  case  of  a  corporation,  when  a  similar  inspection 
would  be  refused,  if  the  suit  were  between    private   persons.     No 
distinction  is  to  be  made,  in  this  respect,  between  a  corporation  ag- 
gregate and  a  corporation  sole,  nor  between  a  corporation  sole  and 
a  private  person  suing  in  his  individual  capacity.  (3)  (i) 

Inspection  'p[jg  ^ule   for    inspectine;    court-rolls,   corporation-books,    and 

when  not  ... 

compelled.  Other  pubHc  writings,  will  not  be  allowed,  where  the  party,  who 
has  them  in  his  custody,  would,  by  producing  them  for  inspec- 
tion, disclose  any  evidence  of  a  criminal  nature,  or  expose  himself 
to  a  prosecution,  (u)  On  an  information,  therefore,  against  sev- 
eral persons,  for  executing  on  office  of  trust  without  taking  the 
oaths,  the  Court  refused  a  motion  for  leave  to  inspect  some 
books  kept  by  the  defendants,  in  which  they  had  entered  their 
elections,  receipts,  and  disbursements,  as  it  would  have  com- 
pelled them  to  give  evidence  against  themselves  in  a  criminal 
prosecution;  (4)  and  a  similar  motion  was  refused,  on  an  in- 
formation against  two  overseers  for  making  a  rate  without  the 
concurrence  of  the  church-wardens.  (5)  Another  case  to  the 
same  effect  is  the  case  of  the  King  v.  Dr.  Purnel,  (6)  where, 
on  an  information  against  the  defendant  for  a  misdemeanor  in 
his  office  of  vice-chancellor  of  the  university  of  Oxford,  a  rule 
for  taking   a   copy  of  the    University-statutes,   in  the  care  of  the 

(1)  Mayor  of  Lynn  v.  Denton,  1  T.  (4)  R.  v.  Mead,  2  Lord  Raym. 
R.  689.  Corporation  of  Barnstaple  v.  927.  R.  v.  Worsingham,  1  Lord 
Lathey,  3  T.  R.  303.  Raym,    705-  R.    v.    Cornelius,    2  Str. 

(2)  Dr.  West'ii    case,  cited    1    Wils.  1210. 

240.     R.    V.    Dr.    Bridgeman,     2     Str.  (5)  R.  v.  Lee,  cited  1  Wils.  240. 

1203.      Mayor   of  Exeter  v.   Coleman,  (6)   1  Wils.  239.     1  Black.  Rep.  37. 

Barnes,  238.     Hodges    v.  Atkis,  .3  Wils.  R.  v.  Heydon,  1  Black.  Rep  351.     See 

398.  also  R.  v.  Earl  of  Cadogan,  5   Barn.  & 

(3)  8  T.  R.  593.  Aid.  902. 


(t)  See  Note  816,  p.  1169.     (h)  See  Note  817,  p.  116y. 


Ch.  7.]     Of  the  Inspection  of  Public  Writings.  453 

keeper  of  the  archives,  was  refused  by  the  Court  of  King's  Bench, 
after  great  consideration  ;  and  the  principle,  that  no  man  shall  be 
bound  to  criminate  himself,  was  fully  recognized. 

This  principle  will  not  apply  to  the  case  of  informations  in  the  ^"o  warranto, 
nature  of  a  quo  warranto^  for  usurping  a  franchise,  or  intruding 
into  a  corporation  office;  for  such  informations,  although  originally 
and  strictly  criminal  noethods  of  prosecution,  are  applied  to  the 
purpose  of  trying  civil  rights,  and  are  considered  at  present  as 
merely  civil  proceedings.  On  an  information,  therefore,  exhibited 
at  the  relation  of  a  member  of  a  corporation,  against  a  person  for 
unlawfully  executing  an  office,  the  relator,  who  as  member  has  a 
right  and  interest  in  the  books  of  the  corporation,  may  obtain  an 
inspection  and  copy  of  such,  and  of  such  only,  as  relate  to  the  sub- 
ject-matter in  discussion.  (1) 

In  a  case  very  lately  before  the  Court  of  King's  Bench,  (2)  an  ac-  Parish  book, 
tion  having  been  brought  for  a  libel  contained  in  a  written  statement, 
which  the  defendant  had   drawn  up  respecting  the   plaintiff's  con- 
duct, the  defendant  applied  for  a  rule  to  inspect  certain  documents 
belonging  to  the  parish,  then  in  the  plaintiff's  possession,  from  which  Private  use. 
documents  he  had  drawn  up  his  statement  by   the  authority  of  the 
vestry.      The  inspection  was  required,  with  the  view   of  enabling 
the  defendant  to  justify  in  the   action.     But  the   Court  refused   to 
order  the  plaintiff  to  furnish  evidence  against  himself:  if  the  papers,  Public, 
the  Court  added,  had  been  wanted   for  the  purpose   of  advancing 
any  parochial  right,  the  case  would  have  been  different,  (v) 

The  motion   for   a  rule  to  inspect   and  take  a  copy,    where   an  How  to  obtain 
action  is   depending,   is   founded  on   an   affidavit  stating  the   cir-  '"^P^'^  '°"' 
cumstances   under   which   the   inspection   is  claimed,   and  stating 
further,  that  an  application  has  been  made  in   the  proper   quarter, 
for  permission  to   make  the   required   inspection,   which  has   been 
refused.  (3)      Where  a  motion  for  a  mandamus,  or  for  an  inform- 

(1)  R.  V.  Babb,  3  T.  R.  579.  the  action    was    brought,    had    come  in- 

(2)  May  v.  Gwynne,  4  Barn.  &  Aid  to  the  defendant's  hands  by  fraud  ; 
301.  but  the   particulars   of   the   fraud  were 

(3)  Ro8  V.  Aylmar,  Barnes,  236.  not  stated;  and  on  an  affidavit  by  the 
In  Threlfale  V.  Webster,  I  Bing.  161,  defendant,  denying  the  fraud,  the  Coort 
a  rule  nisi   was   obtained    on   an    affida-     of  C  P.  discharged  the  rule. 

vit,   alleging   that   the   bills,    on  which 


(v)  See  Note  8tS,  p.   1169. 

Vol.    I.  55 


4^?4  Of  the  Inspection  of  Public  Writings.      [Ch.  7. 

action  in  the  nature  of  a  quo  icarranto  in  a  corporation,  is  depending, 
the  Court  will  grant  a  rule  absolute  in  the  first  instance.  (1)  But 
when  the  motion  is  for  a  writ  of  mandamus  to  inspect,  grounded 
upon  affidavits,  the  rule,  then,  (o  be  granted,  is  only  a  rule  to  show 
cause. 

When.  With  regard  to  the   proper  stage  of  the   proceedings  for  making 

the  application,  it  may  be  observed,  that  the  Court  has  refused  the 
motion  in  an  action  against  a  coporation  upon  a  right  of  toll, 
because  issue  was  not  joined,  so  that  it  could  not  appear,  whether  an 
inspection  would  be  necessary.  (2)  And  in  the  case  of  Dr.  Groen- 
velt  V.  Dr.  Burwell,  where  the  plaintiff  applied  for  a  copy  of  the 
proceedings,  instituted  against  him  by  the  college  of  physcians, 
the  Court  admitted  the  rule  for  inspecting  the  proceedings  to  be 
usual,  for  the  sake  of  evidence,  after  issue  joined,  but  not  by  way  of 
assisting  the  party  to  plead.  (3)  If  a  rule  has  been  granted  to  show 
cause,  why  a  mandamus  should  not  be  awarded,  the  Court  will 
not  make  a  rule  for  inspecting  and  taking  copies,  until  the  first  rule 
is  made  absolute,  and  a  return  is  made  to  the  mandamus;  (4)  and 
it  has  been  thought  the  most  convenient  practice,  where  a  rule  nisi 
for  a  quo  warranto  information  has  been  obtained,  not  to  grant  an 
inspection,  until  the  information  is  granted.  (5) 


Where  no 
action  de- 
pending. 


If  no  action  is  depending,  the  proper  motion  is  for  a  rule  to 
show  cause,  why  a  writ  of  mandamus  should  not  issue,  com- 
manding the  officer  who  has  the  custody'of  the  books,  to  permit  the 
party  to  inspect  and  take  a  copy,  (w)  The  affidavit,  upon  which 
this  motion  is  founded,  ought  to  state  clearly  the  right,  imder 
which  the  inspection  is  claimed,  and  that  the  inspection  has  been 
refused.  In  a  case  of  this  kind,  where  an  inspection  of  the^ 
court-rolls  of  a  manor  was  applied  for,  the  party  stated  in  his 
affidavit  a  prima  facie  title  to  a  copyhold  of  the  manor;  and  the 
Court  of  King's  Bench  held,  that,  as  he  was  clearly  entitled  to 
the  copyhold,  unless  it  had  been  conveyed  away  by  those  under 
whom  he  claimed,   he  had  a  right  to  see,  whether  any  such  con- 

(1)  R.  V.  Shelley,  3  T.  R.  141.  (4)  Per    Cur.    in    R     v.    Justices   of 

(2)  Hodges  V.  Atkia,  3    Wils.  398.  2     Surrey,  Say,  144. 

Black.  Rep.  877,  S.  C.  (5)  By  Ashurst  J   in  R.    v.    Babb,  3 

(3)  Carthew,  421.  T.  R.  581.     R    v.  Hollistcr,  Rep.  temp. 

Hard.  246. 


(ly)  See  Notfl  819,  p.  1170. 


Ch.  8.]  Of  the  Proof  of  Deeds,  Agreements^  ^-c.  435 

veyance  appeared  on  the  rolls;  and  ihe  Court  therefore  made  the 
rule  absolute,  so  far  as  related  to  the  copyhold  lands,  the  subject  of 
the  party's  claim.  (l)(a:) 

(1)  R.  V.  Locas,  10  East,  235;  and  see  3  T.  R.  142.     R   v.  Towor^4  Maula  & 
Eelw.  162. 


(x)  See  Note  820,  p.  1170. 

CHAP.    VIII. 

0/  tht  Proof  of  Deeds^  Agreements,  ^c. 

The  nature  and  proof  of  public  writings  having  been  con- 
sidered, the  next  branch  of  the  subject  relates  to  private 
writings.  In  treating  of  this  part  of  written  evidence,  it  will 
not  be  attempted  to  describe  all  the  various  kinds  and  requisites  of 
private  writings, — which  would  far  exceed  the  limits  of  the  present 
work.  The  enquiry  will  be  confined,  principally,  to  the  con- 
sideration of  the  regular  mode  of  proof,  by  which  a  written  instru- 
ment may  be  introduced  and  admitted  in  evidence.  The  requisite 
of  stamping  also,  and  the  admissibility  of  parol  evidence  ex- 
planatory of  written  instruments,  will  form  a  material  part  of  the 
enquiry. 

The  first  section  of  the  present  chapter  treats  of  the  proof  of 
deeds  and  agreements,  and  other  writings  of  a  similar  description; 
the  second  section  treats  of  the  proof  of  wills. 

Sect.   I. 

Of  the  Proof  of  Deeds,  Agreements,  ^-c. 

The  principal  subjects  treated  of  in  the  present  section  are, 
first,  the  process  for  compelling  a  person  to  produce  writings  in  his 
possession;  secondly,  the  effect  of  a  notice  to  a  party  to  produce 
writings;  thirdly,  the  admissibility  of  secondary  evidence  of  writ- 
ings which  have  been  lost  or  destroyed;  fourthly,  the  proof  of  the 
execution  of  deeds  and  other  writings;  fifthly,  the  proof  of  hand- 
writing in  general. 

First,  of  the  prcce.^s  ("(^r  ccnipelling  a  person  to  produce  writings 
in  his  possession. 


436  Of  the  Proof  of  Deeds ^  Agreements,  ^c.   [Ch.  8. 

Subpoena  If  a^y  (jged  or  other  writing,  necessary   to  be  produced   at  the 

duces  tecum.         .   ,     ^  •    •      ,  •  r        i  •    i  i      i        i 

trial  01  a  cause,  is  in  the  possession  ot  a  tlurJ  person,  tlie  legal  pro- 
cess for  compelling  him  to  produce  it,  is  by  suing  out  a  writ  of 
subpcsna  ad  testificandum^  to  enforce  his  personal  attendance,  and 
inserting  a  special  clause,  called  a  duces  tecum,  which  specifies  the 
writings  required,  and  commands  him  to  produce  them  at  the 
trial,  (y)  The  writ  o(  subpoena  duces  tecum,  like  some  other  writs 
of  undoubted  antiquity,  is  not  to  be  found  in  the  registrum  brevium; 
but  it  can  be  traced  in  practice  as  far  back  as  the  time  of  Charles 
II.,  and  probably  existed  much  earlier,  as  such  a  compulsory  pro- 
cess is  essential  to  the  constitution  of  courts  of  justice.  A  wit- 
ness, served  with  this  subpoena,  is  obliged  to  attend;  and,  though 
it  will  be  a  question  for  the  consideration  of  the  judge,  whether  he 
ought  to  be  compelled  to  produce  the  writings  in  his  possession, 
yet  undoubtedly  he  ought  to  be  ready  to  produce  them,  if  ordered 
by  the  Court;  and,  in  case  of  disobedience  without  sufficient 
cause,  will  be  liable  to  an  attachment,  or  to  a  special  action  for 
damages.  (1)(2) 

Production  ex-  If  the  writing,  which  the  witness  is  called  upon  to  produce, 
would  have  a  tendency  to  subject  him  to  a  criminal  charge,  or  to  a 
penalty,  (2)  (a)  or  any  kind  of  forfeiture,  the  court  will  excuse  him 
from  producing  it,  as  well  as  from  answering  any  question  of  the 
same  tendency;  but,  from  analogy  to  the  rule  respecting  parol 
testimony,  (and  there  seems  to  be  no  good  reason  for  allowing 
a  greater  privilege  in  the  one  case,  than  in  the  other,)  he  would 
not  be  excused  from  producing  a  paper  in  his  possession,  relevant 
to  the  matter  in  issue,  on  the  ground  that  it  might  establish,  or 
tend  to  establish,  against  him  the  fact  of  his  being  in  debt,  or 
might  subject  him  to  a  civil  suit.  (3)  (6) 

Rule  to  pro-  jf  writings  are  in  the   possession  of   a   party   to  the   suit,   the 

duce.  .  -  11-  I    • 

Other  party  has,  in  general,  no  means  ot  compeJling  their  pro- 
duction. In  some  instances,  indeed,  where  the  writing  is  depo- 
sited in   the   custody    of  a   defendant,  as  a  trustee  for  all   parties 

(I)  Amey    v.    Long,    9   East,  473.  (2)  Whitaker        v      Izrd,     2    Tfiunt. 

Corsen  V.  Dubois,  Holt,  N.    P.    C  239.  115. 

Reed  v.  James,  1  Stark.  N.  P.  C.  1S2  .  (3)  See  slat.    46  G.  3,  c.  37. 
Field  v.  Beaumont,  1  Swanst.  209. 


•    (y)  Eee  Note  821,  p.  1170.     (  =  )  See  Note  822,  p.  1171.      (a)  See  Note  823,  p. 
1171.     (6)  See  Note  824,  p.  1171. 


Sect.  I.J     Of  the  Proof  of  Deeds,  Agreements, l^c.  437 

interested,  courtsof  law  will  order  him  to  furnish  the  plainlifT  with  Rule  to  pro- 

"                    .   .                         .                          .                 .        (luce, 
a  copy,  and  produce  the  original  at  the  trial.     Thus,   in  an  action . 

for  a  stake  won  at  an  horse-race,  the  defendant,  who  was  the  stake- 
holder, was  ordered  to  produce  a  copy  of  the  racing  articles,  with- 
out which  the  plaintiff  could  not  proceed.  (1)  So,  in  a  late  case, 
in  an  action  of  covenant,  the  Court  of  Common  Pleas  granted  the 
plaintiff  a  rule  for  taking  a  copy  of  an  indenture  of  assignment  of 
a  lease,  made  between  the  plaintiff  and  defendant,  as  the  only  part 
of  the  indenture,  which  had  been  executed,  was  in  the  hands  of 
the  defendant:  (2)  the  parties,  in  this  case,  having  executed  one 
part  only  of  the  indenture,  in  order  to  save  the  expense  of  double 
stamps,  the  Court  thought  it  a  necessary  consequence,  that  the 
party  who  had  the  custody,  undertook  to  produce  the  deed,  when 
requisite  for  the  use  of  the  other  contracting  party,  (c) 

In  an  action  by  seamen  to  recover  wages,  the  defendant  is  com-  Ship's  ariiclei. 
pellable  to  produce  the  ship's  articles:  (3)  for,  the  contract  for 
wages  always  remains  in  the  possession  of  the  master,  and  the 
statutes  (which  require  a  written  agreement  in  the  case  of  foreign 
voyages,  (4)  and  in  the  case  of  certain  vessels  employed  in  the 
coasting  trade,)  (5)  expressly  enact,  that  where  it  becomes  necessa- 
ry to  produce  the  contract  in  court,  no  obligation  shall  lie  on  the 
seamen  to  produce  it,  but  on  the  master  or  owners  of  the  ship;  and 
that  no  seaman  shall  fail,  in  any  suit  or  process  for  the  recovery  of 
wages,  for  want  of  its  production,  (d) 

Where  a  person  is  sued  on  a  written  security,  which  he  has  Party  interest- 
given  for  the  benefit  of  third  persons,  and  he  afterwards  gets 
possession  of  the  writing,  the  Court,  on  the  application  of  the 
plaintiff,  who  claims  an  interest  in  the  paper,  though  he  has  not 
signed  it  as  a  party,  will  compel  the  defendant  to  produce  it, 
that  it  may  be  stamped,  previous  to  the  trial.  (6)  (c)     The  ground  Stamp. 

(1)  Gracewood  V. ,  Barnes,  439.  confined     to    voyages      on    board      of 

(2)  Blakey  v.  Porter,  1  Taunt.  386.  British  ships.  Dickman  t.  Benson, 
King  V.  King,  4  Taunt.  660.  3  Carnpb.   290. 

(3)  Johnson    v.     Lewellyn,     6    Esp  (5)   St.  31  G.  3,  c.  39. 
N.P.    C.  101.      1  Taunt.  :^86.  (6)     Bateman    v.  Philips,     4    Taunt. 

(4)  St.  2  G.  2,  c  36.  This  statute  157.  The  writing  was  originally  de- 
does  not  apply  to  the  case  of  a  British  posited  in  the  hands  of  a  third  person 
seaman,  who  enters  on  hoard  of  a  (or  the  benefit  of  the  creditors  of  a 
foreign    ship    in  a     British  port,    but  is  bankrupt,  who  brought  the    action 


ed  m  a  docu- 
ment. 


(c)  See  Note  825,  p.  1175.    (d)  See  Note  826,  p.  1176.  (c)  See  Note  827,  p,  1176, 


438  Of  the  Proof  of  Deeds,  Agreements,  ^c.   [Ch.    8. 

Rule  to  pro-     of  ilie  application,   is,    that   ilie   applicant  has  an  interest  in  the 

duce.  .  .  '  '  _ '  '  ' 

writing,    the    production    of  which    is  required;  and    he  may  be 

interested,  though  not,  technically  speaking,  a  parly  to  the  instru- 
ment. (/)  A  person,  who  takes  an  estate  by  way  of  remainder, 
is  not  a  party  to  the  deed,  by  which  his  estate  is  created,  but  he 
has  a  strong  interest  in  the  deed,  and  is  entitled  to  compel  the 
production.  (1) 

But  the  Court  will  not  compel  a  person  to  produce  a  written  in- 
strument in  his  possession  that  it  may  be  stamped,  on  the  applica- 
tion of  one  who  is  not  a  party  to  the  instrument,  nor  interested  in 
it.  (2)  And  where  an  instrument  is  executed  by  two  parties,  each 
of  whom  keeps  a  part,  the  Court  will  not  compel  the  one  party  to 
produce  hio  part,  in  order  to  support  an  action  against  himself:  (3) 
if,  for  instance,  a  bond  were  executed,  and  afterwards  lost  by  the 
obligee,  he  has  no  right  to  demand  of  the  obligor  to  produce  a  copy 
of  the  bond  in  his  possession.  (4)  {g) 

Agent's  books.  In  an  action  between  the  plaintiff  (a  factor)  and  defendant 
(a  grazier,)  the  Court  of  King's  Bench,  on  the  motion  of  the 
defendant,  made  a  rule  for  the  plaintiff"  to  show  cause,  why  he 
should  not  produce  at  the  trial  the  several  books,  in  which  he 
entered  the  amount  of  beasts  sold,  and  of  money  received  on  the 
defendant's  account;  and  no  cause  being  shovvn,  the  rule  was 
made  absolute.  (5)  The  rule,  which  Lord  Mansfield  laid  down 
in  such  cases,  is  said  to  be,  that  wherever  the  defendant  would  be 
entitled  to  a  discovery,  he  should  have  it  in  a  court  of  law,  with- 
Aciion  on  ^^^  gO'"§  into  equity.  (6)  (/i)  In  causes  on  policies  of  insurance, 
policy.  it    is  now  the  common  practice  to  obtain  a  judge's  order,  calling 

upon  the  assured  to  produce  to  the  underwriters,  upon  affidavit, 
all  papers  in  the  possession  of  the  former  relative  to  the  matters 
in  issue;  and  if  the  one  party    is  not   content  with  such  papers  as 

(1)  See  supra,  n.  (6)  4  Taunt.  161.  (5)   Goater  v.    Nunnely,  2  Str.   1130. 

(2)  Osborne  v.  Taylor,  cited  4  Ward  v.  Apprice,  6  Mod.  Rep.  264, 
Taunt    159,  162.       Drown    v.  Rose,    6     contra. 

Taunt.  283.  {(i)     Barry  v.    .^Idx.inJsr,  2)    G    3, 

(3)  Street  v.  Brown,  I  Marshall,  K.  B.  1  Tidd.  Pr.  618.  See  Smith 
610.  6  Taunt.  302,  S.  C.  Ratcliffe  v.  Duke  of  Northumberland,  1  Cox 
V.  Bicasby,  3  Bing.  148.  Pickering  Ch.  C.  363,  365.  Burton  v.  Neville, 
V.  Noyes,  1  Barn.  &  Cre.ss.  262.  2  Cox,  242.      Campbell    v.  Frencb,  ib. 

(4)  6  Taunt.  305  286. 


{/)  See  Note  829,  p.  1176.  (§■)  See  Note  829,  p.  1176.  (A)  See  Note  830,  p.  1177. 


Sect.  1.]     Of  the  Proof  of  Deeds,  Agreements,  <^'C.  489 

are  produced  under  the  order,  the  other   party  will  be   obliged   to  Notie«  to  pro- 
make  an  affidavit,  denying  the  relevancy  of  those  which   are  with- 

held.  (1)  (i)  This  practice  has  been  adopted  for  its  great  conve- 
nience, as  it  saves  the  delay  and  expense  of  a  bill  in  equity.  But  the 
practice  in  Chancery  invariably  is,  that  a  party  is  entitled  only  to 
extracts  of  letters,  if  the  other  party  will  swear,  that  the  passages 
extracted  are  the  only  parts  relating  to  the  subject-matter.  (2)  (j) 

Secondly,  of  the  effect  of  a  notice  to  a  party  to  produce  writings 
in  his  possession. 

In  general,  one  party  has  not  the  means  of  compelling  the  other  Notice  to  pro- 
,  .....  .         ,  duco. 

party  to  produce  any  writmgs  in  Ins  possession,  however  necessary 

they  may  be  for  the  prosecution  of  his  suit.  (3)      If  such  evidence  is 

required,  the  rule  both  in  civil  and  in  criminal  cases,  (4)  is  to  give 

the  opposite  party  or  his  attorney  (5)  a  regular  notice  to  produce  the 

original,  which  is  in  his  possession;  not,  that  on  proofof  the  notice 

he  is  compellable  to  give  evidence  against  himself,  or  that,  if  he  re- 

fuises  to  produce  the  papers  required,  such  a  circumstance  is  to  be 

considered  as  conclusive  against  him,  (6)  {k)  but  the  consequence 

will  merely  be,  that  the  other  party,  who  has  done  all  in  his  power 

to  supply  the  best  evidence,  will  be  allowed  to  go  into  evidence  of 

an  inferior  kind,  and   may  read    an  examined  copy,  or  give  parol 

evi(ience  of  the  contents.  {I) 

Service  of  the  notice  upon  the  wife  of  the  party's  attorney,  late  Seryice. 
in  the  evening  before  the  trial,  has  been  held  to  be  insuffi- 
cient. (7)  (m)  Notice  to  produce  a  paper  connected  with  the  cause, 
given  to  the  attorney  on  the  evening  of  the  second  day  before  the 
trial,  the  party  being  then  abroad,  has  been  held  to  be  sufficient  by 
Lord  Tenterden.  (8)  (n) 


(1)  Clifford  V.  Taylor,  1    Taunt.  167.  (5)  2  T.  R.  203,   n.     Cates   q.    t.  v. 
Goldschmidt    v.     Marryat,     1     Campb.  Winter,  S  T.  R.  306. 

5(;2  (6)  Cooper   v.    Gibbons,    3    Campb. 

(2)  1  Taunt.  !67.  363. 

(3)  Seethe    case  of  F.ntick    v.    Car-  (7)   Doe,  dem.    Wartney,    v.    Grey, 
rington,  19  HowelPs  St.    Tr.    1073,  and  1  Starkie,  N.  P.  C.  283. 

see  cases  in  p.  438,  supra,  n.  (3)  (S)   Bryan  v.  Wagstaff,  1  Ry.  &  Mo. 

(4)  The     attorney-General     v.     Le  328. 
Merchant,  2  T.  R.  201,  n. 


(i)  See  Noto  S31.  p.  1178.   (;)  See  Note  832,  p.  1178.  (A:)  See  Note 833,  p.  1182. 
(/)  S»o  Note  834,  p.  1182.  (m)  See  Note  835,  p.  1183.  (n)  See  Note  836,  p.  1184. 


440  Of  the  Proof  of  deeds,  Agreements,  ^c.   [Ch.  8. 

Neiice  to  pro- before   this  secondary   evidence  can   be  admitted,  it   ought   to  be 

' clearly  shown,  that  the  writing  required  is  in  the  possession  of  the 

Proof  cf  deed  other  party,  and  that  a  notice  to  produce  it  has  been  regularly 
possession,  served.  The  degree  of  evidence  which  may  be  necessary  to  prove 
the  fact  of  possession,  will  depend  so  much  on  the  nature  of  the 
transaction,  and  the  particular  circumstances  of  each  individual 
case,  that  it  is  scarcely  possible  to  lay  down  any  general  rule  upon 
the  subject.  Slight  evidence  may  be  sufficient,  in  many  cases,  to 
raise  a  presumption,  that  the  writing  is  in  the  possession  of  a  party, 
when  it  exclusively  belongs  to  him,  and  regularly  ought  to  be 
in  his  possession  according  to  the  course  of  business.  In  the  case 
of  Henry  v.  Leigh,  (1)  the  solicitor  to  a  commission  of  bankrupt 
proved,  that  he  had  been  employed  by  the  defendant  to  solicit  his 
certificate  under  the  commission,  and  that,  looking  at  the  entry 
of  charges,  he  had  no  doubt  the  certificate  was  allowed:  it  was 
therefore  presumed,  that  the  certificate  came  into  the  defendant's 
possession,  (o) 

Possession  of       In  certain  "cases,  though  the   written   instrument,   which   is  re- 
third  persons.  .  -.     ,  •      i        •       i 

quired,  is  not  in  the  possession  of    the  party  to  the  suit,  but  m  the 

possession  of  a  third  person,  yet  if  there  is  a  privity  between  such 
person  and  the  party,  a  notice  to  the  party  may  be  sufficient. 
Thus,  in  the  case  of  Baldney  v.  Ritchie,  (2)  an  action  against  the 
owner  of  a  vessel  for  goods  supplied  for  the  use  of  the  vessel,  Lord 
Ellenborough  held,  that  a  notice  to  the  defendant  to  produce  an  or- 
Captain.  der,  vvhich  he  had  given  to  the  captain,  was  sufficient  to  admit  the 

plaintiff  into  secondary  evidence  of  the  contents  of  the  order, 
though  the  order  itself  appeared  to  be  in  the  possession  of  the  cap- 
tain: the  evidence  was  held  to  be  admissible,  on  account  of  the 
privity  between  the  owner  and  the  captain,  (p) 

Banker.  A  check  given  by  a  party  to  a  third   person,  which   would  be 

in  the  possession  of  the  banker  of  the  party,  has  been  considered 
as  in  the  possession  of  the  party  himself,  within  the  meaning  of 
the  rule  as  to  notices  for  the  production  of  papers.  (3)  (q)  In  an 
action   against   a   sheriff,   notice   to   the    defendant's   attorney  to 

Under-sheriflF.   produce    a  warrant,    which,  after  execution,  was  returned    to   the 

(1)  3  Campb.  502.  (3)  Partridge    v.    Coates,    1    Ry.    & 

(2)  1  Btarkie,  N.  P.  C.  338.  Mo.  166. 


(0)  See  Note  837,  p.  1187.  {p)  See  Note  888,  p.  11S8.  {q)  See  Note  839,  p.  1189. 


Sect.  1.]  Of  the  Proo/  of  Deeds,  Agreements,  i^c.  441 

defendain's  under  sheriff,  is  sufficient  to  entitle  the  plainliff  to  give  Notice  to 
I               -1               1-1                            / 1  \   /   \                                                   produce, 
secondary  evidence  ot  the  contents.  (1)  (r)  

If  one  parly  calls  for  books  or  writings  in  the  possession  of  the  Writing  called 
other  pariy,  but,  when  they  are  produced,  declines  using  them,  the  J^^'^  "'""' 
mere  calling  for  them  will  not  make  them  evidence  for  the  adverse 
party.  (2)  It  may,  said  Lord  Kenyon,  be  matter  of  observation 
lo  the  counsel  on  the  other  side,  that  the  entries  in  th'3  books 
weve  in  favour  of  his  client,  hut  cannot  entitle  him  to  offer  the 
books  in  evidence  to  the  jury.  If,  however,  the  party  who  has 
called  for  the  books,  inspects  tlieni,  he  thereby  makes  them  evi- 
dence for  the  other  party,  although  he  has  not  used  them  himself 
in  evidence.  (3)  (s)  Where  books  are  refused,  it  is  a  suspicious 
circumstance,  and  open  to  much  observation,  but  it  will  not  be 
conclusive  against  the  party,  (t)  The  regular  time  of  calling  for 
the  production  of  papers  and  books,  is  not  until  the  party  who  re- 
quires them,  has  entered  upon  his  case;  till  that  period  arrives, 
the  other  party  may  refuse  to  produce  them,  and  there  can  be  no 
cross-examination  as  to  their  contents,  although  the  notice  to  pro- 
duce them  is  admitted.  (4)  "  The  evidence,"  said  Lord  Ellenbo- 
rougli,  in  the  latter  of  the  cases  here  cited,  "  cannot  in  strictness 
be  anticipated,  although  it  may  be  rigorous  to  insist  upon  the  rule, 
and  a  close  adherence  to  it  may  be  productive  of  inconvenience." 

The   rule,    which   requires,    that    a  party   shall   have    previous  Notice,  when 

notice   to    produce  a  written    instrument  in   his   possession,  before  dispensed 

the  contents  can   be   proved  as  evidence  in  the  cause,    has  been 

made  with  good   reason  ;    in   order   that  the  party   may   not   be 

taken  by   surprize,  in  cases    where  it  must   be  uncertain,    whether 

such  evidence  will  be   brouglit  forward   at  the   trial  by  the  adverse 

party.      Uut   this  reason  will   not  apply  to   cases,  where,  from  the 

nature   of   the   proceedings,   the   defendant    has  notice,    that   the      .,   .     , 

.  .  .  ^     ,       .  !•  Notice  from 

plaintiff*  means   to  charge  him   with  the   possession   of  the  instru-  the  proceed- 

ment.     It  cannot,  in  such  cases,  be   necessary  to  give  any   other '"^*' 

notice,    than  the  action  iiself  supplies.     In  an  action   of  trover, 

(1)  Taplin   v.    Alty,  1    Ry.    &    Mo.         (3)  VVharam  v.  Routlege,    5  Esp.  N. 
164.  P.  C.  235. 

(2)  Sayerv.    Kitchen,  1    Esp.  N.    P.         (4)  Graham  v.  Dyster,  2  Starkie,  N. 
C.  210.  P.  C.  23.     Sideways  v.   Dyson,  2  Star- 
kie, N.  P.  C.  49. 


(r)  See  Note  840,  p.  1190.  (s)  See  Nolo  841,  p.  1190.   (i)  See  Note  842,  p.  1192. 

Vol.   I.  56 


442  .  Of  the  Pi  oof  of  Deeds,  Agreements,  ^c.    [Ch.  0. 

Notice  to  therefore,  for  a  bond,  the  plainiifT  has  been  allowed  to  zive  parol 
prodnco.  -irL  11^ 
evidence  01  the   contents,   to  support   the   general   description   of 

the  instrument  in  the  declaration,  without  having  given  the  de- 
fendant previous  notice  to  produce  the  original.  (1)  («)  And  on  a 
prosecution  for  stealing  a  promissory  note,  or  other  writing,  de- 
scribed in  the  indictment,  parol  evidence  of  the  contents  will  be 
received,  v.iihout  any  formal  notice  lo  the  prisoner  to  produce 
the  original.  In  Aickle's  case,  (2)  on  an  indictment  for  steal- 
ing a  bill  of  exchange,  all  the  judges  held,  that  such  evidence 
had  been  properly  admitted,  though  it  was  proved  in  that  case, 
that  the  bill  had  been  seen,  only  a  few  days  before  the  trial,  in 
a  state  of  negotiation  in  the  hands  of  a  third  person,  who  had 
been  served  with  a  subpana  duces  tecum,  but  who  did  not  appear. 
(v)  And  in  Layer's  case,  (3)  on  an  indictment  for  high  treason, 
where  it  was  proved,  that  the  prisoner  had  shown  a  person  the 
paper,  containing  the  treasonable  matter  laid  in  the  indictment, 
and  then  immediately  put  it  into  his  pocket,  that  person  was  per- 
mitted to  give  parol  evidence  of  the  contents  of  the  paper.  And 
in  the  case  of  De  la  Motte,  (4)  on  an  indictment  for  a  traitorous 
correspondence  with  the  French  government,  where  the  question 
was,  whether  examined  copies  of  the  treasonable  papers,  which 
bad  been  secretly  opened  at  the  post-office,  and  copied,  and  then 
forwarded  to  their  place  of  destination,  were  admissible  in  evi- 
dence; the  Court  held,  that  they  might  be  admitted,  after  proof 
that  the  originals  were  in  the  hand-writing  of  the  prisoner. 

2.  Fraaduient  jnJqj.  ^qq^  [\^q  principle  of  the  rule  apply  to  the  case,  where 
a  party  to  the  suit  has  fraudulently  got  possession  of  a  written 
instrument  belonging  to  a  third  person;  as,  where  a  witness  was 
called,  on  the  part  of  the  defendant,  to  produce  a  letter  writteu 
to  him  by  the  plaintiff,  and  it  appeared,  ihat  after  the  commence- 
ment of  the  action  he   had   given  it  to  the  plaintiff;  in  this  case, 

(1)  How  V.  Hull,  14  East,  274  Pcott  Tr.  170.  S.  C.  Francia's  case,  15  How- 
T.  Jones,  4  Taunt.  SfiS.  Joiley  v.  Tay-  ell  St  Tr.  941.  R.  v.  Moors,  6  East, 
lor,  1  Campb.    143.     Butcher  v-    Jarrat,  421.   n. 

3  Bos.  &  Pull.    143.     Wood  v.    Strick-         (4)  Cor.    Builer,    J.,   and    Heath,  J. 

land,  2  Werivale,  461.  O.  B.    1781,1    East,    P.  C.     124,    from 

(2)  1  Leach,  Cr.  C.  330.  Butler's  MS.  of  Gould,  J.  These  copies  were 
ease,  13  Howell  St.  Tr.  1254,  which  rejected  on  another  ground,  because  the 
was  a  pro.secution  for  the  forgery  of  a  originals  li:id  not  been  traced  to  the  pris- 
bond.  oner's    possession.     See    21  Howell    St. 

(3)  6  St.  Tr.    263.      16  Iloweli's   St.  Tr.  737. 


possession 


{u)  See  Note  843,  p.  1 193.     ^v)  See  Note  844,  p.  1194. 


Sect.    ].]   Of  the  Proof  of  Deeds.  Agreements,  ^c.  44f3 

ihou'j-h   a  notice   to  prorluce   had    not   been  siven,  parol  evidence  Notice  to 
^                                '                                                    o          '  I                                  produce, 
of  tlie  contents   was  adunited,  because  the  paper  belonged   to  the 

witnfss,  and  had  been  secreted  in  fraudof  the  subpoena.  (I)  {w) 

The  counteriiart  of  a  deed   is  evidence  against   the  person  who  3.  Coanterpart, 
'  ...  .  evid  nco  with- 

signed  it,  aud   against    his  assignee,  wiihon.t    giving   notice  to  pro-  out  uoiiiie. 

duce   the  original.      Thus,  in  an   action   against   the  master  of  an 

apprentice,    for   not  inseiiing  in   the    indenture   of    apprenticeship 

the  true  consi^leration,  an  averment  in  the  declaration,  that  A.  B. 

by  a   certain   indenture,  put   himself  apprentice   to   tlie  defendant, 

may  be  proved  by  that   part  of  the  indenture  which  the  defendant 

executed.  (2)      So,  in   an   action   of  ejecttnent,  upon  a  condition 

of  re-entry   for  non-payment    of  rent,    against  the   assignee  of   a 

lease,  proof  of  the   counterpart,  executed    by  the  original   tenant, 

is  sufficient  proof  of  the  assignee's  holding  on  the  same  terms.  (3)  (x) 

A  written    paper,  which   has   been   dehvered    by  the   defendant  Resolutions  at 

t     1       '  •'  _  public  raofet- 

to  a  person  present  at  a  meeting,  as  a  copy  of  certain  resolutions  ing. 
about  to  be  proposed  and  read,  and  which  is  proved  to  corres- 
pond with  the  resolutions  actually  proposed,  is  good  evidence 
of  those  resolutions,  without  proof  of  any  previous  notice  to  the 
defendant  to  produce  the  paper  from  which  the  resolutions 
appeared  to  be  read.  This  paper  was  considered,  as  against  the 
party  to  whom  it  ajjplied,  to  be  fully  as  good  evidence  as  any  tl!at 
could  be  produced.  (4)(t/) 

Another  exception  may  be  mentioned,  in   the  case  of  an  action  4  Action  by 
,  •         1  •    I      1  •     •  11   1  1     seaman. 

by  a  seaman  to  recover  wages,  in  which  the  captain  is  compellable 

to  produce  the  ship's  articles  at  the  trial,  though  he  has  not  receiv- 
ed a  notice  for  that  purpose,  if  he  would  found  any  objection  upon 
t!iem,  or  resort  to  them  in  making  his  defence.  The  statute  has 
introduced  an  exception  to  the  general  rule  upon  this  subject.  (5) 

It  seems  now   to   be  the  better  opinion,  that  neither  party  will  P*"'''  '"  '■'""^' 

'  '        "^  in  |)()s3-.-.-;tfiuri 

(1)  Leeds  v.  Coo'c,  4   Esp.   N.    P.  C.         (4)   R,  v.  Hunt,  3  Burn.  &  Aid.  572.   party. 
256.  Vide  supra,  p.  221,3.   C,  and  Gorton 

(2)  Burleigh  v.  Stibbs,  5  T.  R.  465.      v.  Dyson,  iu  2d  vol. 

(.3)  Roe    dein.    West    v.     Davis,    7         (5)  Bowman       v.      Maiiz^^lman,       2 
East,   363.       Mayor,    &c.    of    Carlisle     Camp.  315. 
V.  Blamire,  8  East,  487. 


(u»)  See  Note  845,  p.  1 195    {x)  See  Note  816,  p.  1196.  (y)  See  Note  847,  p.  1196. 


444  Of  the  Proof  of  Deeds,  Agrcemeiiis,  ^c.    [  Ch.  8. 

Notice  to         be  allowed,  either  in  an  examination   in  chief  or  in  a  cross-ex- 

^^l^*!! amination,  lo  enquire  into  the  contents  of  a  deed,  merely  because 

the  opposite   parly  has  the  original  deed    in  his  possession,   in 
court,  at  the   time  of  the   trial;  and  th^it  the   opposite  party  may 
object  to  such  parol  evidence  of  the   contents,  on  account   of  his 
not  having  received  a    previous    notice    to    produce  the  original. 
In    the    case    of  Doe    on    the    demise    of  Haldane.and    Urry  v. 
Harvey,  (1)  the  Judges  of  the  Court   of  King's  Bench  appear  to 
have  diflered   in  opinion  upon  this  point.      In   that   case,  title    was 
deduced  to  Haldane   under   a  will;  but   one  of  the   plaintiff's  wit- 
nesses said,  on  cross-examination,  that    llaldane  had  conveyed  all 
interest  in    the  premises  to    Urry,  before   the  time  of  the  demise 
in  the  declaration,  and   that  the  deed    was  in   court.      Upon  this, 
it  was  insisted,  that,  as  the  plaintiff's  witness  proved   the  title  out 
of  Haldane,  and  as  the   deed  of  conveyance   was   in  the   court, 
the  deed  ought  to   be  produced  in   evidence  to    show^  a    title  in 
Urry,   the    other    lessor    of  the   plaintiff.      The    counsel    for    the 
plaintiff,  on   the   contrary,  refused   to  produce  the  deed,  insisting, 
that  the  plaintiff  ought   to  recover  under   the  one  or  the   other  of 
the  lessors;  for,  if  the  one  had  parted  wiih  the  title,  the  other  had 
acquired  it.      But   Mr.  J.    Aston,  who   tried   the   cause,  being  of 
opinion,  that  the  plaintiff  ought  to  give   further  evidence  to  ascer- 
tain the  title,  under   which  he   was  to  recover  the  term,  nonsuited 
the   plaintiff:  and   on   a   motion  afterwards   for  setting   aside  this 
nonsuit,   Lord   Mansfield,    after  observing   that    in  the  action   of 
ejectment  the  plaintiff  could  not  recover  except  upon  the  strength 
of  his  own   title,   said,  "  It  was   plain   the   plaintiff  had   no   title 
under  Haldane,  who  had   conveyed  away  all  the   interest  in  the 
premises  to  the  other  lessor,  and  that  as  to  his  claim   of  a   title 
under    Urry,    the    plaintiff    had    not    proved  any    title;    the  jury 
could   not    have   found   for  the   plaintiff  under  the   deed   of  con- 
veyance  to   Urry,  unless   it   were   produced,  and  probably   there 
was  something   in  the  deed,  which  would   have  shown,  that    Urry 
bad  no  title."     Lord  Mansfield    laid   the    principal   stress  on  the 
fact   of  the  plaintiff's  refusing   to   produce  the   conveyance  from 
Haldane,  which    was   admitted   to  be   in   court.      "  The  want  of 
notice,"  he   said,  "  was   no   objection   in    this  case,  because  they 
had   the  deed  in   court;  and   the   refusal  to  produce  it  warranted 

■^1)   4  Ihirr.  2484.     See  Doe  dem.  \\';irtney  v.  Grey,  I  ?t;iikio,  N-  P   C.  2S:>. 


Sect.  1.]    Of  the  Proof  of  Deeds,  Agreements,  ^c,  445 

the   strongest    presumption,    that   neither   of  the   lessors   had   any  Noiioo  lo 

produce. 

title."     Mr.  Justice  Aston  and  Mr.  Justice  Willes  agreed  in  opin- : 

ion  with  Lord  Mansfield.  But  Mr.  Justice  Yates  differed  fiom 
therest  of  the  Court.  "  He  founded  himself,"  he  said,  "  upon  the 
rules  of  evidence.  The  fact  of  the  conveyance  coming  ottt  on 
cross-examination  could  make  no  difference.  The  plaintiff's 
counsel  were  not  obliged  to  produce  the  deed,  for  no  man  can  be 
obliged  to  produce  evidence  against  himself:  the  only  consequence 
of  a  notice  to  produce  would  have  been  the  adujission  of  inferior 
evidence."  Upon  this  case  it  may  be  observed,  that  the  fact  of 
Haldane's  having  conveyed  away  all  his  interest  to  Urry  seems  to 
have  been  assumed,  as  satisfactorily  proved;  but  from  the  opinion 
of  Mr.  Justice  Yates,  which  seems  to  be  the  better  opinion,  it  may 
be  collected,  that  there  was  no  legal  proof  of  any  conveyance  of 
title  out  of  Haldane,  and  that  the  answer  of  the  witness,  upon 
which  the  defendant's  argument  rested,  was  as  inadmissible  in 
evidence  on  the  cross-examination,  as  it  would  have  been  on  an 
examination  in  chief.  The  true  objection  to  such  evidence  is, 
that  the  witness  was  speaking  lo  the  contents  of  a  deed,  when 
there  had  been  no  notice  given  to  produce  the  original;  and  it 
does  not  appear  to  be  a  sufficient  answer  to  say  that  the  deed  is  in 
court;  for,  if  the  party  had  received  a  regular  notice  to  produce  ii, 
he  might  have  come  prepared  with  evidence  to  repel  any  inference 
which  the  production  of  the  deed  might  have  raised  against  him. (z) 

A  parol    notice   to   produce   writings   may    be   proved    by   the  Proof  of  no- 
person   who   delivered   the   notice,  or  by  one  who  heard   it   deli-  "'^^' 
vered;   (a)  and   a  written   notice  to  produce   may    be  proved  by  a 
duplicate  original,  (1)  or  by  an  examined  copy  of  the  original.  (2) 
A  notice  to  quit  in  an  action  of  ejectment,  (3)  and  a  notice  of  the  Notice  to  quit, 
dishonour  of  a  bill  in  an  action  upon   the   bill,  (4)  may  be  proved 
in  the  same  manner,  (by  a   duplicate  original,  or   by   an  examined 

(1)  Gotlieb  V.  Danvers,  I  Esp.  N.  P.  notice  to  produce  the  original.  And 
C.  455.  Surtees  v.  Hubbard,  4  Esp  N  the  Court  of  King's  Bench,  to  whom 
P.  C.  203.  the    point   was   referred  as  a    matter    of 

(2)  Kine  v.  Beaumont,  o  Brod.  ci  general  practice,  were  of  the  same  opin- 
Bing.  288.     7  Moore,  C.    P.  112,    S.  C.  ion. 

A  copy  of  a  letter,  giving  notice  of  the         (3)  2  Bos.  &  Pull.  41. 
dishonour    cf    a    bill,     proved    to    be    a  (4)   Ackland    v.    Pearce,    2    Campb. 

true  copy,  was   adjudged    by    the    Court  601.     Roberts  v.    Bradshavv,  1    St:irkie, 

of  Common    Pleas    to  be  good    evidence  N.  P.  C.  2S.     Langdon  v.  iluli'a,  5  Esp. 

of  the    contents  of  the    letter,    without  157. 


(«)  See  Note  848.  p.  1197.     (a)  See  Note  84»,  p.  1197. 


44-6  Of  the  Proof  of  Deeds,  Agreements,  S^^c.     [Ch.  8. 

Notice  to         copy,)    without   notice   to  produce  tlio   original  in  the   possession 

^'^"         of  the  other  party,  {b)      It  may  be  objected,  that  a  duplicate  is  not 

the  best  evidence  of  the  contents  of  the  notice  delivered,  as  the 
supposed  duplicate  original  may  be  inaccurate,  and  the  contents 
might  be  proved  to  a  certainty  by  the  production  of  the  notice 
itself;  but,  on  the  other  hand,  extreme  inconvenience  would 
arise  from  a  stricter  medium  of  proof;  for,  if  a  duplicate  notice 
to  quit  is  not  sufficient,  no  more  is  a  duplicate  of  the  notice  to 
produce,  and  thus  notices  might  be  required  in  infinitum.  The 
practice  of  allowing  such  proof  of  a  notice  seems  further  to  be 
sanctioned  by  this  principle,  that,  as  the  original  delivered  is  in 
the  hands  of  llie  other  party,  it  is  in  his  power  to  contradict  the 
duplicate  original,  or  examined  copy,  by  producing  the  other  on 
trial,  if  they  vary.  (1)  When  a  notice  may  be  either  in  writing 
or  by  parol,  and  the  notice  is  given  in  both  forms,  it  may  be 
proved  in  either  form.  (2) 

Noticfl  of  Upon  the   same   principle,  where  a   notice   is  given  to  a  magis- 

action.  '.  *'  .... 

trate  previous  to  the  commencement  ol   an  action  agamst  him,  or 

where  a  demand  is  made  of  a  copy  of  a  warrant  preparatory  to  an 
action  against  a  constable,  if  another  paper  is  made  out  at  the 
same  time,  precisely  to  the  same  effect  as  that  delivered,  both  may 
be  considered  originals,  and  the  paper  so  preserved  may  be  receiv- 
ed in  evidence  without  a  notice  to  produce  the  one  delivered.  (3) 
From  analogy  to  tliese  cases,  in  an  action  on  an  attorney's  bill, 
though  the  plaintiff"  cannot  produce  parol  evidence  of  the  contents 
of  the  bill  delivered,  without  giving  notice  to  produce  it,  (4)  yet  a 
copy,  made  out  at  the  same  time  and  proved  to  be  correct,  has 
been  admitted  to  be  good  evidence.  (5)  (c) 

Duplicate  j^  duplicate  which  has    been  taken  from  an  original  letter,  at  a 

copy.  ...  .        ,  ^  .  I  •        ■        -11       I 

single  impression,  by  means  ol    a  copying   machine,  is  still  only  a 

copy;  and  therefore   cannot  be  read,  without  a  previous  notice  to 

the  oihor  party  to  produce  the  original,  (6)  (d)  orwithout  proof  that 

(1)  T?v  I.ord    F.ldon,    C.    J.     Jory  v.  (5)   Anderson     v     ?.'ay,    2    Boa       & 
Orchaid,'2  Bos    a  Pall.  41.              '  I'uil.     2S7.        Philipson     v.      Chase,     2 

(2)  Smith  V.  Young,  I  Campb.  440.  Campb.  110.  S.   P. 

(3)  2  Bos.  &  Pull.  39.  (6)     Nodin    v.  Murr.iy,      ^     Campb. 

(4)  Shaw    V.   Markham,    Peake,    N.  228. 
P.  C.  164. 


(6)  See  Note  850,  p.  1198.  (c)  See  Note  8-51,  p.  1202    (a?)  See  Note  852,  p.  1202. 


Sect.  1.]  Of  the  Proof  of  Deeds,  Agreemenis,  ^c.  447 

tlie  copy,  so   taken,    was  afterwards    on    comparison  found  to   be 
correct. 

Proof  of  ha  vine  sent  a  notice  or  oilier  paper  by  tlie  post  has  been  Nonce  by 

.         let tcr. 
frequently   consjidered,  in   npiCrcantile  transactions,  to  be  sufficient 

proof  of  notice  to  the  party  to  whom   it  was  directed;  and   this  on 

a  principle  of  general  convenience,  (e)      A  question  has  sometimes 

arisen  as  to  the  requisite  proof  of  the  fact  of  sending  by  the  post. 

In  the  case  of  Hagedorn  v.  Reid,  (1)  where  it  became  necessary 

to  prove,  that  a  licence  to  trade  had   been  sent    by  the  plaintiff  to 

A.  B.,  it  was  proved  to  be  the  invariable  course  of  the  plaintiff^'s 

office,  that  the  clerk,  who  copies  a  licence,  sends  it  oft'  by  the  post,  Putting  into 

and   writes  on  the  copy  a  memorandum  of  iiis  having  done  so;  a  P°^ " 

copy  of  the  licence  in  question  was  produced   from  the  plaintiff" 's 

letter- book,    in   the  hand-writing   of  a   deceased  clerk,    who  had 

written   a  memorandum,   stating    that    the  original   had    been  sent 

to  A.  B.,  and    a  witness,  acquainted   with   the  plaintiff's  mode  of 

transacting  business,  swore,  that  he  had  no   doubt  the  original  was 

sent  according  to  the  statement  in  the  memorandum;  this  evidence 

was  held  to  be  sufficient. 

The  case  of  Hetherington  v.  Kemp,  (2)  supplies  an  instance 
where  the  proof  of  the  fact  of  putting  a  letter  into  the  post, 
was  held  to  be  deficient.  The  question  being,  whether  the 
defendant  had  received  notice  of  the  dishonour  of  a  bill  of 
exchange,  it  was  proved,  that,  on  the  day  after  the  bill  be- 
came due,  the  jilaintiff  wrote  a  letter  addressed  to  the  de- 
fendant, stating 'that  it  had  been  dishonoured:  that  this  letter 
was  put  down  on  a  table,  where,  according  to  the  usage  of 
his  counting-house,  letters  for  the  post  were  always  deposited, 
and  that  it  was  the  business  of  a  porter  to  carry  them  from 
thence  to  the  post-office;  but  the  porter  was  not  called,  and 
there  was  no  evidence  as  to  what  had  become  of  the  letter, 
after  it  was  put  down  upon  the  table.  A  notice  to  produce  the 
letter  had  been  served  upon  the  defendant.  It  was  contended 
for  the    plaintiff',   that    this   was  good  prima  facie  evidence,    that 

(1)  3  Campb.  379.     See  cases  in    2d  (2)   4  Campb.  193. 

vol. 


(c)  See  Note  853,  p.  1203. 


y 


■i-'i^  Of  the  Proof  of  Deeds ,  Agreements,  ^c.  [Cli.    8. 

ihe  letter  had  been  sent  by  the  post.  Lord  Ellenboroiigh  held, 
that  some  evidence  <  ugbt  to  be  given,  that  the  letter  had  been 
taken  from  the  table  in  the  counting-house,  and  put  into  the 
|)Ost-office.  Tf  the  porter  had  been  called,  and  if  he  had  said, 
that,  although  he  had  no  recollection  of  this  particular  letter,  he 
invariably  carried  to  the  post-office  all  the  letters  found  upon  the 
table,  this  might  have  been  sufficient;  but  il  was  not  sufficient 
to  give  such  general  evidence  of  the  course  of  business  in  the  plain- 
lift' 's  counting-house.  (/) 

Deed  pro-  If  a  party,  in  compliance  with  a  notice,  should  produce  a  deed, 

proved.  °''    o'^ier   instrument   called  for   by   the   adverse   party,   the  next 

question  is,  whether  the  party,  who  calls  for  its  production,  ought 
to  prove  its  execution,  or  whether  the  writing  should  be  admitted, 
without  proof,  against  the  party  producing  it,  as  duly  executed. 
The  general  rule,  laid  down  by  Mr.  Justice  Buller,  is,  t  at  "•  in 
civil  actions,  where  a  plaintiff  wishes  to  give  in  evidence  a  deed 
in  the  defendant's  custody,  he  gives  the  defendant  notice  to  pro- 
duce it:  and  the  deed,  when  produced,  must  prima /acie  be  taken 
to  be  duly  executed;  because  the  plaintiff,  not  knowing  who  are 
the  subscribing  witnesses,  cannot  come  prepared  at  the  trial  to 
prove  the  execution."  (1)  In  a  case  of  settlement,  therefore, 
where  the  respondents  had  given  notice  to  the  appellants  to  pro- 
duce an  indenture  of  apprenticeship,  by  which  the  pauper  was 
bound  in  the  appellant  parish,  and  which  indenture  was  according- 
ly produced  at  the  trial  of  the  appeal,  the  Court  of  King's  Bench 
held,  that  the  court  below  ought  not  to  have  required  the  respon- 
dents to  prove  the  execution,  but  that  the  indenture  should  have 
been  admitted  prima  facie  as  duly  executed.  (2) 

In  the  next  reported  case  on  this  subject,  the  case  of  Gordon 
and  others  v.  Secretan,  (3)  Lord  Ellenborough,  C.  J.  said,  that 
the  case  of  the  King  v.  Middlezoy  had  been  much  questioned 
at  the  time,  and  since  over-ruled;  and  that  the  production  of 
an  instrument  at  the  trial,  in  pursuance  of  a  notice,  would  not 
supersede   the   necessity   of  proving  it  by  one  of  the   subscribing 

(1)2T.  R.  43.  (3)     8    East,    548.      Wetherston   v. 

(2)  R   V.    Inhabitants  of  Middlezoy,     Edgington,    2    Campb.  94,  S.  P.    John- 
2  T.  R.  41.     5  T.  R.  366.  son  v.  Leweliin,  6  Esp.  N.  P.  C.  101. 


(/)  See  Note  864,  p.  1203. 


Sect.  1.]     Of  the  Proof  of  Deeds,  Agreements,  ^c.  449 

witnesses,  as  in  ordinary  cases.  And  Mr.  Justice  Lawrence 
added,  tiiat  this  point  had  been  so  ruled  by  Lord  Kenyon  in  a 
subsequent  case,  wliere  the  adverse  party,  having  notice  to 
produce  a  written  instrument,  produced  it  accordingly  at  the 
trial,  and  Lord  Kenyon  held,  that  the  party,  who  called  for  it, 
was  bound  to  call  one  of  the  subscribing  witnesses  to  prove  the 
execution.  In  the  case  of  Gordon  and  others  v.  Secretan, 
which  was  as  action  upon  a  policy  of  insurance  on  shipped 
goods,  the  plaintifl's  averred  in  their  declaration,  that  they  were 
interested  in  the  subject-matter  of  the  insurance,  and  the  de- 
fendant, intending  to  dispute  that  fact  at  the  trial,  gave  the 
plaintiffs  notice  to  produce  certain  articles  of  agreement  made 
between  them  and  the  captain  of  the  ship,  by  which,  as  it  was 
contended,  the  contrary  would  clearly  appear;  in  pursuance  of 
this  notice,  the  plaintiffs  at  the  trial  produced  the  instrument, 
attested  by  two  witnesses,  and  insisted,  that  the  defendant 
should  call  one  of  them  to  prove  the  execution.  The  point 
was  so  ruled  at  nisi  prius,  and  afterwards  confirmed  by  the  Court 
of  King's  Bench.  From  this  case,  therefore,  it  might  be  in-  General  rule, 
ferred,  that,  if  a  party  to  a  suit,  in  consequence  of  a  notice, 
produces  an  instrument  executed  between  himself  and  others, 
yet  that  the  other  party,  though  a  stranger  to  the  instrument, 
ought  to  prove  the  execution,  if  he  means  to  avail  himself  of  it  in 
evidence. 

The   rule,   however,    has   been   properly    restricted   in    certain  Exception.  ] 
cases.     In    the  case  of  Pearce    v.    Hooper  (1,)    and    action    of  j  ^vhere  tl 
trespass,    where  the  question   was,    whether  the   place   in    which  party  produc- 
the  trespass    was  alleged,    belonged    to    the  plaintiff  as  part  of  a  de°  the  deed, 
certain  estate  ;  the   defendants    gave    notice   to    the  plaintiff    to 
produce  a   deed   of  conveyance,   in    which   the   estate   had   been 
conveyed   to  the   plaintiff  by   a  description   limited  to   a  number 
of  acres,  which,  it  was  said,    would  necessarily  exclude  the  place 
in  question;  the   plaintiff  produced   the  conveyance,  and,  on   the 
authority  of   the   cases   before   mentioned,   it  was  ruled,    that  the 
defendant   ought   to  prove  the  execution,   which,  as  he   was  not 
prepared  to    prove,   the    instrument    could  not   be    received   in 

(1)  S  Taunt.  62. 

Vol.   I.  57 


460  OJ  the  Proof  of  Deeds,  Agreements,  ^c.    [Ch.  8. 

evidence.  But,  on  a  moiion  afierwards  for  a  new  trial,  the  Couri 
of  Common  Pleas  were  of  opinion  that  it  was  not  necessary 
for  the  defendants  in  t^iis  case  to  call  the  attesting  witness,  to 
prove  the  execution.  The  Court  admitted,  that  tlie  mere  pos- 
session of  an  instrument  by  one  party  cannot,  in  general,  absolve 
the  other  party  who  calls  for  it,  from  the  necessity  of  producing 
the  attesting  witness.  "  An  instance  to  illustrate  this,"  saiti 
the  Chief  Justice  'Mias  been  propeily  put  in  the  case  of  a  will, 
cited  in  the  case  of  Gordon  v.  Secrelan;  for,  supposing  that 
an  heir  at  law  is  in  possession  of  a  will,  and  the  devisee  brings 
an  ejectment,  and  calls  on  the  heir  to  produce  the  will,  there 
the  heir  claims  not  under  the  will,  but  against  the  will,  and  it 
would  be  hard,  that  the  will  should  be  taken  as  proved  against 
him,  because  he  produces  it.  But  that  is  very  different  from 
the  case,  where  a  man  is  called  upon  to  produce  a  deed,  under 
which  he  holds  an  estate.  The  plaintiff,  (added  the  Chief  Jus- 
tice, with  reference  to  the  case  then  before  the  Court,)  has  no 
interest  in  the  fee  simple  of  the  estate,  if  this  deed  does  not  con- 
vey it:  if,  then,  he  produces  the  deed,  under  which  he  claims,  shall 
it  not  be  taken  to  be  a  good  deed,  so  far  as  relates  to  the  execution, 
as  against  himself .'"'  The  other  Judges  concurred  in  opinion,  and 
a  new  trial  was  granted- 

In  the  case  of  Orr  v.  Morice  (I,)  {g)  which  was  an  action  for 
the  use  and  occupation  of  premises,  against  the  assignees  of  a 
bankrupt,  the  Court  of  Common  Pleas  held,  that  the  deed 
of  assignment  of  the  bankrupt's  effects,  produced  by  the  de- 
fendants at  the  trial,  under  a  notice  from  the  plaintiff,  was 
admissible  in  evidence,  without  proof  of  the  execution  by  the 
subscribing  witness,  as  it  appeared  that  one  of  the  assignees 
had  continued  to  occupy  the  premises  for  some  time  after  the 
act  of  bankruptcy.  The  principle  to  be  deduced  from  these 
cases  is,  that,  when  a  parly  to  a  suit,  in  pursuance  of  a  notice, 
produces  an  instrument,  to  which  he  is  a  party,  and  under 
which  he  claims  a  beneficial  interest,  it  will  not  be  necessary 
that  the  other  parly  should  call  an  attesting  witness  to  prove  the 
execution,  [h) 

(1)3  Btod.  &  Bing.  139. 
(g)  See  Note  865,  p.  1204.     {h)  See  Note  856,  p.   1205. 


Sect.   1.]    Of  the  Proof  of  Deeds,  Agreements,  ^c.  451 

In  an  action  by  a  lessee  against   an  assignee,  if  llie   defendant  Action  be- 

•'  '"'...  f       tween  tenant 

produce  the  original  lease  at  the  trial,  it  will  not  be   necessary  for  and  landlord. 

the  plaintiff  to  call  a  subscribing  witness;  and  the  circumstance 
of  the  defendant  having  assigned  his  interest  to  a  third  person, 
cannot  make  any  difference  in  the  rule.  (1)  (r)  In  the  last  case 
upon  this  subject,  where  the  attorney  of  the  lessor  of  the  plaintiff, 
in  an  action  of  ejectment,  obtained  from  one  of  the  defendants  a 
lease  of  the  premises  in  question,  granted  to  him  for  a  term,  in  or- 
der to  prevent  the  defendants  from  setting  it  up  to  defeat  the  action; 
this  was  held  to  be  such  a  recognition  of  the  lease  by  the  attorney, 
on  behalf  of  his  client,  who  was  to  derive  a  benefit  from  the  pos- 
session of  the  lease,  as  would  dispense  with  the  formal  proof  of  ex- 
ecution, on  the  production  of  the  instrument  from  the  hands  of  the 
attorney.  (2)  {]) 

Another  very  reasonable  exception  to  the  general  rule  has  been  Action  ngain^i 
made,  in  the  case  of  an  action  against  a  sheriff,  for  taking  insuffi- 
cient pledges  in  a  replevin  bond;  in  which  it  has  been  held,  that 
the  replevin  bond  produced  by  the  sheriff,  a  [)ub!ic  officer,  whose 
duty  it  was  to  take  such  bond,)  may  be  admitted,  without  proof, 
against  him,  as  duly  executed.  (3) 

If  a  party,  in  cotnpliance  with  a  notice,  produces  a  written  instru-  How  much  to 
fnent  in  his  possession,  he  is  entitled  to  have  the  whole  read;  (4) 
and  if  the  instrument  refer  lo  others  with  such  particularity  as  to 
make  it  necessary  to  inspect  them,  that  the  sense  may  be  complete, 
or,  referring  to  other  writings,  adopt  them  as  part  of  its  own  mean- 
ing, he  may  insist  on  having  these  also  read  in  evidence.  (5)(fc) 

Thirdly,  as  to  ihe  adnn'ssibility  of  secondary  evidence  of  writings, 
which  have  been  lost  or  destroyed. 

(1)  Burnett    v.    Lynch,     5    Barn.    Si  been    given    to    the    defendant    to    pro- 
Cress.  589.  duce     the    bond.       The    attesting     vvit- 

(2)  Doe,    dem.    Tyndale    v.    Ileni-  ness    had      been    subpoenaed     by    both 
ing,  6  Barn.  &  Cress   29.  parties,  and  was  present  at  the  trial. 

(3)  Scott    V.    Waithman,    3  Starkie,  (4)  See  ante,  p   359. 

N.   P.   C.    168.     Barnes    v.  Lucas,  Ry.  (5)   Johnson    v.    Gilson,    4     Esp     N. 

&    Mo.     264,     S.    P.     There    was    no  P.  C.  21.     Wheeler   v.    Atkins,  5    Esp. 

count    in    the    deelaratien,    for    omitting  246.     Falconer    v.    Hanson,    1    Canjpb. 

to    take   a   replevin-bond.     Notice    had  171. 


(i)  See  Note  857,  p.  1206.  {j)  Fee  Note  858,  p.  1206.   (A)  See  Note  859,  p.  1206. 


452 


Of  the  Proof  of  Deeds,  Agreements,  ^-c.   [Ch.  8. 


Secondarj 
evidence  of 
v\  ritings. 


If  a  party  intend  lo  use  a  deed  or  any  other  written  instrument 
in  evidence,  he  ought  to  produce  the  original,  if  he  has  it  in  his 
possession ;(Z)  but,  if  the  instrument  is  in  the  possession  of  the  oth- 
er party,  who  refuses  to  produce  it  after  a  reasonable  notice,  or  if 
the  original  is  lost  or  destroyed,  secondary  evidence,  uhich  is  the 
best  that  the  nature  of  the  case  allows,  will  then  be  admitted,  (m) 
And  the  secondary  evidence,  if  in  writing,  need  not  be  stamped.  (1) 


On  non-prc- 
ductioo. 


In  case  the  other  party  refuse  to  j)roduce  an  original  deed  or 
agreeiiient,  which  is  in  his  possession,  and  which  he  has  had 
notice  to  produce,  secondary  evidence  of  the  contents  will  be  re- 
ceived without  proof  of  the  execution  of  the  original.  (2)  After 
once  refusing  (o  produce,  and  obliging  l)is  opponent  to  resort  to 
secondary  proof,  he  shall  not  be  at  liberty  to  retract,  or  by  produc- 
ing the  original,  when  it  is  not  wanted,  to  insist  upon  the  formal 
proof  of  its  execution.  (3)(n) 


On  proof  of 
los!). 


If  the  original  has  been  lost  or  destroyed,  and  two  or  more  parts 
have  been  executed,  the  loss  or  destruction  of  all  the  parts  should 
be  proved,  before  secondary  evidence  of  the  contents  can  be  receiv- 
ed (4)  (o) ;  and  the  original  deed  ought  to  be  proved  to  have  been 
duly  executed  (5),  unless  proof  of  the  execution  would  be  dispens- 
ed with,  if  the  original  itself  were  produced,  or  unless  the  want  of 
the  original  is  occasioned  by  the  default  of  the  other  party,  in  which 
case,  the  execution  may  reasonably  be  presumed  against  him.  (p) 
So,  where  an  original  note  of  hand  is  lost,  a  copy  cannot  be  read 
in  evidence,  unless  the  note  is  proved  to  be  genuine.  (6) 


Power  of  at- 
torney. 


On  the  impeachment  of  Lord  Melville,  (7)  the  Committee  of 
managers,  in  order  to  prove  the  contents  of  a  letter  of  attorney, 
(under  which,  it  was  said,  Mr.  Douglas  had  been  authorized  by 
Lord  Melville   to  apply  to  the  Treasury  for   monies  from  time  to 


(1)  Munn  V.  Godbold,  3  Bing.  292. 

(2)  Doxon  V.  Haigh,  1  Esp.  N.  P. 
C.  410.  Cooke  v.  Tanswell,  8  Taunt. 
450.     2  Moore,  C.  P.  313,  S.  C. 

(3)  Jackson  v.  Allen,  3  Stark.  N. 
P.  C.  74. 


(4)  Bull.  N.    P.    254.     R.  v.  Castle- 
ton,  6  T.  R.  236. 

(5)  R.  V.   Sii    T.    Culpepper,    Skin- 
ner,  673,  by  Holt,  C.  J. 

{Q)   By      Lord     Hardwicke,    C.    J. 
Goodier  v.  Lake,  1  Atk.  246. 

(7)   29  Howell  St.  Tr.  714—723. 


(/)  See  Note  860,  p.  1207.  (w)  See  Note  861,  p.  1214.  (n)  See  Note  86?, 
p.  1219.  (0)  See  Note  863,  p.  1220.  (p)  See  Note  864,  p.  1220.  (</)  See  Nota 
865,  p.  1220. 


Sect.  I.]  Of  the  Proof  of  Deeds,  Agreements,  ^c.  453 

lime,  as  his  pavmaster,)  offered   in  evidence  an  entry  in  a  book,  Secondary 

'  '•'  ''  .  -riii       evidence  ot 

kept  in  the  excliequer,  which  book  contanied  entries  of  all  tne  writings. 
letters  of  attorney  for  the  receipt  of  money  at  the  Exchequer.  It 
was  satisfactorily  proved,  that  no  such  letter  had  been  found,  on  a 
diligent  search,  among  Mr.  Douglas's  papers  shortly  after  his 
death;  it  was  proved  also,  that  an  official  order  had  been  made 
out  for  Mr.  Douglas  to  receive  money,  under  a  letter  of 
attorney;  and  the  fact  of  Mr.  Douglas's  appointment  as  pay- 
master clearly  appeared  from  a  letter  in  Lord  Melville's  hand- 
writing, dated  only  two  days  after  the  date  of  the  proposed 
entry.  The  clerk  of  the  office  also  proved,  that  he  had  made 
the  entry  from  the  original  letter  of  attorney;  which  entry  pur- 
ported to  contain  the  names  of  persons,  as  attesting  witnesses  to 
the  letter.  After  argument,  the  entry  was  rejected.  "  There 
is  no  legal  proof,"  said  the  Lord  Chancellor,"  of  Lord  Melville's 
hand-writing;  it  does  not  appear,  whether  the  attesting  witnesses 
are  living  or  dead;  nor  does  it  appear,  that  Mr.  Douglas  ever 
received  any  money  under  that  appointment."  For  these 
reasons,  it  was  determined,  that  the  managers  had  not  entitled 
themselves  to  read  the  paper.  Upon  this,  the  managers  proceeded 
further  (1,)  and  tendered  in'  evidence  a  certificate  signed  by 
Mr.  Douglas  as  paymaster,  and  given  by  him  to  the  Navy-Office, 
acknowledging  the  receipt  of  money  by  him  at  the  Exchequer; 
the  managers  then  produced  entries  in  the  Bank  books,  signed 
by  Lord  Melville  and  Mr.  Douglas,  in  the  common  form  of 
opening  an  account;  and  afterwards  called  a  witness,  wliose 
name  and  description  corresponded  with  the  name  and  descrip- 
tion of  one  of  the  attesting  witnesses  in  the  proposed  entry;  and 
this  witness  stated,  that  he  had  some  recollection,  though  very 
slight,  (for  the  entry  bore  date  about  24  years  before  this  time,) 
of  providing  a  stamp  for  the  power  of  attorney  from  Lord  Mel- 
ville to  Mr.  Douglas,  and  of  attesting  it  at  the  navy-pay-office. 
Upon  this  evidence,  the  Lord  Chancellor  declared  his  opinion, 
that    the    entry  was    admissible,  and    the  Lords  allowed  it  to  Le 

read. (2) 

* 

On  the  hearing  of  an  appeal    against   an  order  of  removal,  (o) 
the    principal  question   was,   whether    one   person  only,   or    more 

(1)  29  Howell  St.  Tr.  p.  723— TSO.  (3)  R.  v.  StoUe    Golding,   I  Barn.   &. 

(2)  Ibid.  p.  739.  Aid.   173- 


^^'i'  Of  the  Proof  of  Deeds,  Jgrcemenis,  ^-c,      [Ch.  8. 

Secomlary        than   One,  had    been   appointed   overseer   in  a  particular  year;  the 

evidence  of  ,  i  •  i  .     ,  ^ 

writings  respondents,  who,    \n  order   to  vacate  an  mdenture  of  apprentice- 

ship,  had    to  prove,   tliat  only  one  overseer  had    been    appoinicd 
in  that  year,    had  given   notice  to   the  appellants  to   produce   all 
books  and   writings  in  their   custody  and   power,  relatin<z  to    the 
Appointment    ^Ppointnients    of  overseers;  the   appellants,  being    called    upon  lo 
cf  overseer,      produce  under  this  notice,  produced  one   parish  book,  which   was 
the  otdy   one    in   existence,  and   the  parish  officer,  who   produced 
it,   proved    that  no    appointments   were   kept    by   the    parish;  the 
respondents   then   proceeded  to   enquire  of  a  witness,  as    to  iheie 
having  been,  in  the   particular  year,  one   or  niore  overseers;  but, 
on  an  objection   being  taken,  the  Court  of  Quarter  Sessions  held, 
'  and  the  Court  of  King's  Bench  afterwards  confirmed  their  o|)inioni 

that,  as  the  appointments  had  been  in  writing,  parol  evidence  could 
not  be  admitted.  "  The  question,''  said  Lord  Ellenborougb,  "  is, 
whether  the  justices  below  have  done  wrong  in  rejecting  the  parol 
evidence.  This  is  clear,  that  the  parol  evidence  could  not  be  ad- 
mitted, until  the  case  w'as  rijie  for  the  admission  of  secondary  evi- 
dence; now  it  could  not  be  considered  as  ripe  for  that  purpose  un- 
til the  respondent  parish  had  exhausted  all  the  proper  means  of  pro- 
curing the  primary  evidence.  Have  they  done  this?  First,  as  to 
the  appointment  itself,  they  gave  a  notice  to  the  parish;  and,  sup- 
posing the  parish  had  the  actual  custody,  that  notice  would  have 
been  sufficient,  but  this  does  not  appear.  Have  they  then  the  legal 
custody.''  Certainly  not;  for  the  legal  custody  is  in  the  officer, 
who  is  the  person  most  interested  in  the  instrument,  and  who  re- 
quires its  production  as  a  sanction  for  those  acts,  which  he  may  be 
called  upon  to  do  under  its  authority.  Now,  here  there  has  not 
been  any  notice  to  the  overseer  himself.  I  think,  therefore,"  added 
Lord  Ellenborough,  "  that,  as  in  this  case  there  has  been  an  omis- 
sion of  the  means  of  exhausting  the  primary  evidence,  recourse 
could  not  be  had  to  that  of  a  secondary  nature." 

Proof  of  loss.         Proof  by    a   witness,  that   the  paper  in  question   was    thrown 

aside  as  useless,    and   that  ise   bt-lie\ cs  if  lo   be  lost    or  destroyed, 

will  be  sufficient  to  let  in  the   secondaiy   evidence.  {)*)      This  was 

detern)ined    by    tlie  Court   of  King's   Bench  in   tlie   case  of  .Mr. 

Paper  thrown  Justice  Johtison.  (1)      A  similar  point  arose  in  the  case  of  1  en- 
aside  as  use- 

'®^^'  (I)   11.  V   Mr   Jiisttce  Johissou,  7  East,  G(i. 

(;■)  See  Note  866,  p.  1222. 


SccT.    L]   Of  Ihc  Proof  of  Deeds,  Agreements,  ^^c.  455 

sineton  v.  Iiiiilis,  (1)  in  ilie  course  of  which  it  became  necessary  Secondary 

...  .  •  I     •  i' •  evidence  01 

10  piove  ihe  loss  ol  a  hcence:  ihe  witness  said,  it  was  his  prac- writings, 
lice  to  destroy  or  put  aside  such  hcences  amongst  the  waste 
pa[)ers  of  his  oflice,  as  not  being  of  any  furtlier  use,  and  that  he 
supposed  he  had  disposed  of  the  licence  in  question  in  the  same 
manner  as  olher  licences  for  ships,  whoso  voyages  had  been 
performed;  but  was  not  sure  that  it  was  destroyed.  The  wit- 
ness added,  he  had  been  afterwards  applied  to  for  this  licence, 
and  searched  for  it,  but  lie  did  not  recollect,  whether  he  had 
found  it  or  not:  though  he  did  not  think  he  had  found  it.  Lord 
Ellenborough,  a(iverting  to  the  evidence,  in  delivering  the  judg- 
ment of  the  Court,  said,  '•'  We  are  of  opinion,  that  this  evi- 
dence satisfies  what  the  law  requires  in  respect  to  search,  and 
establishes  with  reasonable  certainty  the  fact  of  the  licence  being 
lost.  It  was  not  to  be  expected,  that  the  witness  should  i)e  able 
to  speak  with  more  confident  certainty  to  a  fact,  to  which  his 
attention  would  not  be  particularly  drawn  at  the  time  on  account 
of  any  importance  being  supposed  to  belong  to  it."  So  in  the 
case  of  Brewster  v.  Seuell,  (2)  (which  was  an  action  against 
the  defendant  for  publishing  a  libel,  charging  the  plaintiff  with 
having  defrauded  an  insurance-company  in  settling  a  loss  upon 
a  policy  against  fire,)  where  it  became  necessary,  in  proof  of  an 
averment  in  the  pleadings,  to  account  for  the  non-production  of 
the  policy,  with  a  view  to  give  secondary  evidence  of  its  contents, 
it  appeared,  that  the  policy,  which  had  been  effected  about  seven 
years  before,  had  become  useless  in  consequence  of  a  second 
policy  having  been  efi'ected:  the  policy  had  probably  been  re- 
turned to  the  plaintiff  after  settling  the  loss.  The  clerk  of  the 
plaintiff's  attorney,  a  few  days  before  the  trial  of  the  action, 
searched  for  it  in  the  plaintiff's  house,  not  only  in  every  place 
pointed  out  by  the  plaintiff,  but  also  in  every  place  which  the 
clerk  thought  likely  to  contain  a  paper  of  this  description;  the 
question  was,  whether  this  was  a  sufficient  search;  the  Court  of 
King's  Bench  held,  that  it  was  sufficient.  And  in  the  late  case 
of  Freeman  v.  Aikell,  when  it  became  necessary  to  prove  the 
contents  of  an  information,  which  had  been  taken  before  a 
magistrate,  the  magistrate  proved,  that  he  had  delivered  the 
information  to  the   clerk  of  the  peace  or   to  his  deputy;  the  clerk 

(1)  8  East,  27S,  288.  (2)  3  Barn.  &  Aid.  296. 


456  Of  the  Proof  of  Deeds,   Agreements,  ^c.   [Cli.   8. 

Secondary        of  the  i)eace  |)roved  also,  that  no  such  inforrnaiion  was  to  be  found 

evidenco  of        .  i  -n   i 

writings.  in  the  office;  that  a   bill  had  been  jjresented  on  the  charge   in   this 

information,  wliich  was  rejected  by  the  grand  jury,  and  that  it 
was  usual  in  such  cases  to  destroy  the  informations;  the  Court 
held  that  this  was  a  suflicient  search,  without  calling  the  deputy 
clerk;  for  if  the  information  was  delivered  to  the  deputy,  it  was 
delivered  to  him  as  agent  for  the  clerk  of  the  peace,  and  not  for  his 
own  purposes;  it  should  not  therefore  be  presumed  to  be  among 
his  private  papers,  but  rather  to  be  among  those  in  the  custody  of 
the  clerk  of  the  peace.  (1) 

Possession  in  If  the  Writing  in  question  is  traced  into  the  possession  of  a 
particular  individual,  who  is  alive,  he  should  be  called  to  give 
some  account  of  the  instrument;  if  he  is  dead,  an  inquiry  should 
be  made  of  such  persons  as  must  be  presumed  to  have  it  in  their 
possession.  Thus,  in  a  case  of  settlement,  where  it  was  proved 
by  witnesses,  that  an  indenture  of  apprenticeship  consisted  of 
two  parts,  one  of  which  had  been  destroyed,  and  the  other  had 
come  to  the  hands  of  a  person,  who  was  living  and  had  not  been 
subpoenaed,  but  in  answer  to  an  application  for  the  other  part, 
he  was  proved  to  have  said,  that  he  could  not  find  that  part,  and 
did  not  know  where  it  was,  the  Court  of  King's  Bench  was  of 
opinion,  that  this  was  not  a  sufficient  ground  for  admitting  parol 
evidence  of  the  contents.  (2) 

In  another  case  of  parochial  settlement  (3,)  where  it  appeared, 
that  only  one  part  of  an  indenture  had  been  executed,  that  the 
pauper  and  master  were  both  dead  at  the  time  of  the  trial,  and  that 
an  inquiry  for  it  had  been  made  of  the  pauper  shortly  before  his 
death,  who  said,  that  the  indenture  had  been  given  up  to  him 
after  the  expiration  of  the  apprenticeship,  and  that  he  had  burnt 
it,  and  an  enquiry  had  also  been  made  of  the  daughter  and  sole 
executrix  of  the  master,  who  said,  she  knew  nothing  about  it; 
under  these  circumstances  the  Court  of  King's  Bench  were  of 
opinion,  that  a  sufficient  enquiry  had  been  made,  to  render  parol 
evidence  of  the    contents    admissible;  and   the  distinction,  taken 

(1)  Freeman  v.  Arkell,  2  Barn.  &  liams  v.  Yonnghusband,  1  Starkie,  N. 
Cress.  494,  497.  P.  C.  139. 

(2)  R.  V.  Castleton,  6  T.  R.  236.  (.3)  R.  v.  Morton,  4  Maulo  &  Selw. 
R.  V.  St.  Sepulchre,  2  Bott.  353.     Wil-  48. 


Sect.  l.J     Of  the  Proof  of  Deeds,  Agreements,  ^c.  457 

between  this   case  and  the  case  of  the  Kine  and  Caslleton,  was,  Secondary 
,.,  ,  .,  r        r  1-1  I  evidmceof 

that    in    that   case   there   was  evidence  ol  a   fact    which    made    a  writings. 

further  search  necessary,  but  that  in  this  case  the  same  inform- 
ation  which  traced  the  instrument  into  the  pauper's  possession, 
plainly  showed,  that  any  further  search  would  have  been  nugatory. 
Here,  there  was  no  proof,  that  the  instrument  ever  existed  in 
the  possession  of  die  pauper,  unless  his  declaration  could  be  taken 
as  evidence;  and  if  it  could,  he  declared  in  the  same  breath,  that 
it  existed  no  longer.  When  therefore  the  pauper,  by  whose  in- 
formation alone  the  parties  were  acquainted  with  the  fact  of  his 
having  had  the  instrument  in  his  possession,  at  the  very  same  time 
declared  that  it  was  destroyed,  it  became  unnecessary  to  search 
among  his  papers,  (s) 

The  party,  after  accounting  for  the  absence  of  the  original,  by  Wlmt  second- 
proving  its  loss  or  destruction,  or  that  it  is  in  the  possession  of  the  admissible'^*' 
other  party,  who  after  receiving  notice,  refuses  to  produce  it,  may 
read  a  counterpart;  or,  if  there  is  no  counterpart,  an  examined 
copy:  or,  if  there  should  not  be  an  examined  copy,  he  may  give 
parol  evidence  of  the  contents.  (1)  (t)  The  recital  of  a  deed  in 
another  deed  is  evidence  of  the  recited  deed,  if  the  original  is  lost, 
against  the  party  who  executed  the  reciting  deed,  or  against  any 
person  claiming  under  him.  (2)  (tt)  And  when  possession  has 
gone  along  with  a  deed  during  many  years,  the  original  of  which 
is  lost  or  destroyed,  an  old  copy  or  abstract  may  be  given  in  evi- 
dence, tliough  not  proved  to  be  true,  because  in  such  case  it  may 
be  impossible  to  give  better  evidence.  (3)* 

(1)    Villers   v.    Viliers,   2    Aik.    71.         (2)  Com.  Dig.  tit.   Evidence,  (B.  5.) 

Bull.  N.  P.    294.       Doxon    v.   Haigh,   1  Sljipvvilh    v.    Shirley,    11    Vea.     64.    5 

Esp.  N.  P.  C.  409.     Waller  v.  Horsfall,  Barn.  &  Cress.  601. 
1    Campb.    501.     Fisher   v.    Samuda,  1  (3)   Buller,  N.  P.  254. 

Cainpb-    192.      Liebman    v.    Pooley,    1 
Slarkie,  N.  P.  C.  167.     3   Biiig.  295. 

•  The  loss  of  a  deed  by  time  and  accident,  or  by  any  other  casualty,  is  a 
sufficient  reason  :or  dispensing  with  a  profert  in  pleading,  when  olIierwisK  a 
profert  might  be  necessary;  (Read  v.  BrooUman,  o  T.  R.  151.  Bolton  v.  Bp. 
of  Carlisler  2  H.  Blaclc.  259,)  or  it  may  be  pleaded,  that  the  deed  is  in  the 
hands  of  the  opposite  party,  or  destroyed  by  him  (Tolty  v.  Nesbilt.  3  T.  R. 
153,  n.  (c).)  But  if  the  plaintiff,  instead  of  declaring  upon  the  deed,  as  lost 
or  destroyed,  inadvertently  pleads  with  a  profert,  (by  which  ho  takes  upon 
himself  to  aver  the  e.xis'.ence  of  the  instrument,  and  otfers  it  in  court,  where  it 
is  supposed  to  remain,)  and  the  defendant  pleads  non  est  factum,  the  plaintiff 
will   not  be   allowed    to  prove  the   destruction  or   loss   at  the    trial,  and    must   bo 


(j)  See  Note  867,  p.  1223.  (/)  Sec  Note  868,  p.  1224.  (?0  See  Nolo  869,  p.  1235. 

Vol.   I.  58 


458  Of  the  Proof  of  Deeds,  Agreements,  ^-c.   [Ch.  8. 

Secondary  A  witness,   in  speaking   to  the  contents  of  a   lost   writing,   may 

cvidGncs  Gi 

writiu''9.  assist   his  recollection   by   entries  in   his  memorandum-book;    but 

these  entries  are  not  in  tliemselves  admissible  in  evidence;  so  that, 
if  the  witness  has  not  the  meinorandum-book  at  hand,  ready  to  be 
Memorandum    |)roduced,  no  objection  can  be  taken  on  account  of  its  absence. (v) 
''°°'^"  In  the  case  of  Kensington  v.  Inglis,  before  cited,  (1)  the  witness, 

who  proved  the  loss  and  contents  of  a  licence,  had  kept  a  memo- 
randum-book, in  which  he  made  entries  of  licences  for  his  own  in- 
formation, and  for  the  information  of  the  governor  of  the  country, 
who  granted  the  licences;  he  gave  it  to  the  governor,  but  did  not 
know  where  the  book  then  was,  or  what  the  governor  had  done 
with  it.  As  to  the  non-production  of  the  memorandum-book,  said 
Lord  Ellenborough,  that  book,  if  it  had  existed,  and  been  in  the 
witness's  hand  ready  to  be  produced,  could  not  have  been. produced 
at  the  trial,  in  proof  of  the  fact  of  granting  any  particular  licence; 
the  only  use  which  it  could  be  allowed  to  answer,  being  by  way  of 
memorandum,  to  refresh  the  memory  of  the  person  who  made  the 
entries,  when  he  should  be  called  as  a  witness. 

Degree  of  Examined  copies,  and  the  parol  evidence  of  witnesses,  are  the 

dence  ^^^  ^^''  oi'^inary  and  regular  proof  of  the  contents  of  lost  writings,  (to) 
But  when  a  written  paper  has  been  traced  into  the  possession 
of  one  of  the  parties  to  the  suit,  and  he  does  not  produce  it  after 
receiving  a  notice,  something  less  than  an  examined  copy  may 
reasonably  be  admitted  as  sufficient,  at  least  to  oblige  the  party 
to  give  better  evidence  by  producing  the  paper  itself,  if  he  finds 
the  secondary  evidence  incorrect.  In  a  late  case,  where  it  ap- 
peared that  the  defendant  had  acknowledged  the  receipt  of  a 
letter  of  a  particular  date,  which  was  not  produced  at  the  trial 
when  required,  it  was  ruled,  that  an  entry  in  a  letter-book,  (pur- 
porting to  be  a  copy  of  a  letter  of  the  same  date  from  the 
plaintiff  to  the  defendant,  and  inserted  by  a  deceased  clerk,  who 
kept   the    book    according    to    the  course  of  business,   and    with 

(1)  S  East,  279,  289. 


nonsuited.  (Smith  and  otiiers  v.  Woodward,  4  East,  585.)  If  the  deed  has 
been  lost  or  destroyed  after  the  commencement  of  tlie  action,  the  plaintiff  should 
move  to  put  off  the  trial  and  amend  the  pleadings,  stating  the  circumstances  to  ex- 
cuse the  p/ofert.  (Ibid  )  But  it  would  be  too  late  to  make  such  a  motion  at  nisi 
prius.     (Paine  v.  Buslin,  1  Starkie,  N-  P.  C.  747. 


(f)  See  Note  870,  p.  1239.     (w)  See  Note  881,  p.  1240. 


Sect.   1.]   Of  the  proof  of  Dee Js,  Agreements,  ^c.  459 

great  punctuality,)  was  admissible  evidence  of  the  contents  of  the  ^^'|^j°g"|^^fj^j. 
letter  in  question.  (1)  "  The  rules  of  evidence,"  said  Lord  Ellen-  writings. 
borough,  "  must  expand  according  to  the  exigencies  of  society; 
this  entry  is  reasonable  evidence  to  prove  the  contents  of  the  letter 
of  the  particular  date,  which  the  defendant  acknowledges  he 
received,  and  which  he  does  not  produce  upon  a  notice  for  that 
purpose:  we  know,  it  is  the  habit  of  merchants  to  keep  such  a 
book,  and  a  witness  has  sworn,  that  the  book  in  question  was  kept 
with  great  punctuality;  if  the  entry  in  the  clerk's  hand-writing 
were  not  admitted,  there  would  be  no  way,  in  which  the  most  care- 
ful merchant  could  prove  the  contents  of  a  letter  after  the  death  of 
his  entering  clerk.  I  will  therefore  allow,"  added  Lord  Ellen- 
borough,  "  the  entry  to  be  read  diS,  prima  facie  evidence,  and  the  de- 
fendant may  rebut  it  by  producing  the  original. "(a:) 

The  case  of  Bullen  v.  Michel,  (2)  which  has  been  lately  ^JSTntJofan- 
determined,  affords  an  example  respecting  the  admissibility  of  cient  writing, 
secondary  evidence  of  ancient  documents.  In  that  case,  on  an 
issue  to  try,  whether  a  particular  farm  in  the  parish  of  S.  was 
discharged  of  tithes  on  payment  of  a  modus,  the  Court  of  Ex- 
chequer determined,  that  an  old  ledger  or  chartulary  of  the 
abbey  of  Glastonbury  was  admissible,  as  secondary  evidence  of 
the  endowment  of  the  vicarage.  Two  questions  arose,  one 
with  respect  to  the  custody,  from  which  this  document  was  pro- 
duced, which  will  be  afterwards  mentioned;  the  other,  (supposing 
it  to  have  been  sufficiently  authenticated  i\s  to  the  propriety  of 
its  custody,)  whether  it  could  be  admitted  in  evidence  between 
the  parties  to  the  issue,  the  vicar  and  the  occupiers  of  the  farm. 
With  respect  to  this  it  appeared,  that  the  chartulary  contained 
an  account  of  matters  of  a  miscellaneous  description;  among 
other  things,  it  contained  entries,  which  appeared  to  be  trans- 
cripts of  contemporaneous  documents  considered  as  autlientic: 
and  these  transcripts  purported  to   give  an  account  of  the  licence 

(1)  Pritt    V.    Fairclough,    3    Campb.  lo  be    evidence   of  the    contents   of  the 

305,  hy  Lord    Ellenborough.     See    also  power,    after    reasonable  proof    of    the 

Roberts  v     Bradshaw,  1   Starkie,  N.  P.  loss  of  the  original.  Vide  supra,  p.  453. 
C.    28.     In    Lord    Melville's    case,   (29  (2J  2     Price,    39y.       Judgment    af- 

Howell,    St.    Tr.    734 — 740,)  an    entry  firmed    in  the   House    of  Lords,  4  Dow. 

of  a   power  of  attorney,  in    the   office-  29S.     Wolley  v.  Brownhill,   13    Price, 

books  at  the    exchequer,  was   adjudged  507,  503. 


(x)  See  Note  S72,  p    1242. 


460 


Of  the  Proof  of  Deeds,  A^ireements,  ^c.   [Ch.   8. 


Secondarj 
eviilencc  of 
writings. 


of  appropriation  of  the  parish,  and  hkewise  an  account  of  the 
several  matters  of  endowment.  The  original  endowment  not 
being  found  in  the  places,  where  search  had  been  made  for  it  as 
its  natural  place  of  deposit,  the  Court  i)eld  thai  the  chartulary, 
which  had  been  found  in  the  custody  of  the  Marquis  of  Bath,  (and 
which  must,  therefore,  be  considered  as  having  come  from  the 
custody  of  the  rector,  for  the  abbot  was  formerly  the  rector,) 
was  admissible  evidence.  (1)  The  plaintiff  appealed  from  this 
judgment  to  the  House  of  Lords,  who  affirmed  the  judgment  of 
ihe  Court  of  Exchequer.  Lord  Redesdale,  in  giving  his  opinion 
on  that  occasion,  slated,  (2)  "  that  the  original  instruments,  if 
they  could  have  been  produced,  would  have  stood  on  the  same 
ground  as  the  taxation  of  Pope  Nicholas,  inquisitions  on  the 
writ  of  ad  quod  damnum-,  and  a  variety  of  similar  evidence  from 
which  the  jury  may  draw  iheir  inference.  The  only  question 
then  is,  whether  the  entries  in  this  book  are  evidence  of  these 
two  instruments.  If  the  originals  could  be  produced,  these 
entries  would  not  be  evidence.  But  search  has  been  made,  and 
the  originals  cannot  be  found;  and  if  we  shut  our  eyes  to  that 
sort  of  inferior  evidence  in  cases  where  no  other  can  be  had,  we 
shall  constantly  do  injustice.  The  best  evidence  is  often  lost 
through  carelessness,  the  injuries  of  time,  and  various  other  cir- 
cumstances; and  secondary  evidence  is  then  admitted,  to  raise 
presumption  or  inference,  where  no  direct  evidence  can  be  had. 
This  then  is  the  next  best  evidence;  and  perhaps  evidence  still 
more  inferior  might  have  been  admitted,  if  this  could  not  have 
been  produced.  This,  however,  appears  to  be  the  best  after  the 
originals.  For  these  two  instruments  seem  to  have  been  copied 
by  a  person  employed  for  the  purpose,  probably  one  of  the 
monks,  and  deposited  among  the  muniments  of  the  abbey,  be- 
cause it  was  important  for  the  interests  of  the  abbey,  that  the 
instruments  should  be  preserved;  and  for  the  same  reason  it 
might  be  presumed,  that  they  were  faithful  copies;  at  least 
there  appeared  to  have  existed  no  motive  to  make  them  other- 
wise, and  they  were  found  in  a  situation  where  they  were  likely 
to  be  kept." 


(1)  Wood  B.  differed  from  the  rest 
of  the  Court  on  this  point.  And  eeo 
18  Price,  50S. 


(3)  5  Dow.  824.     2  Price,  399. 


Sect.  1.]    Of  the  Proof  of  Deeds,  Agreements,  ^c.  461 

There  has  been  some  difference  of  opinion  on  the  subject  of  Copy  of  en- 
ihe  admissibihty  of  examined  copies  of  the  enrohnent  of  a  deed,  deed!" 
The  Ch.  B.  Gilbert  makes  the  following  distinctions  on  this 
subject:  "Where  a  deed  needs  enrolment,"  he  says,  (as 
deeds  of  bargain  and  sale,  by  statute  27  Henry  VIII.  c.  IG.) 
"  there  the  enrolment  is  the  sign  of  the  lawful  execution  of  such 
deed,  and  the  officer,  appointed  to  authenticate  such  deeds  by 
enrohnent,  is  also  empowered  to  take  care  of  the  fairness  and 
legality  of  such  deeds,  and  therefore  a  copy  of  such  enrolment 
must  be  sufficient;  for  when  the  law  has  appointed  them  to  be 
made  public  acts,  the-copy  of  such  public  acts  shall  be  a  sufficient 
attestation."  (1)  "  But  where  a  deed  needs  no  enrolment,  (con- 
tinues Ch.  B.  Gilbert,)  theie,  though  it  be  enrolled,  the  inspexi- 
vius  of  such  enrohnent  is  not  evidence,  because,  since  the  officer 
has  no  authority  to  enrol  them,  such  enrolment  cannot  make 
them  public  acts,  ^.and  consequently  cannot  entitle  the  copy  of 
them  to  be  given  in  evidence;  for  then,  if  the  deed  were  doubtful, 
it  were  but  to  enrol  it,  and  bring  the  copy  or  inspeximus  in  evi- 
dence, and  thereby  avoid  producing  a  deed  that  was  any  way 
suspicious."  (2) 

Mr.  Justice  Buller,  after  citing  the  rule  from  Chief  Baron 
Gilbert,  (that  deeds  of  bargain  and  sale,  enrolled  and  requiring 
enrftlment,  may  be  given  in  evidence  without  proof  of  the  execu- 
tion,) observes,  (3)  that  "  the  law  may  well  be  doubted,  notwith- 
*'  standing  that  such  deeds  of  bargain  and  sale  enrolled  have 
"  frequently  in  trials  at  nisi  prius  been  given  in  evidence  without 
"  being  proved.  In  support  of  this  practice,"  he  adds,  "  the 
"  case  of  Smartle  v.  Williams  (4)  is  much  relied  on;  but  that 
*'  case  is  wrong  reported,  for  it  appears  from  the  report  in 
"  Levinz,  (5)  that  the  acknowledgement  was  by  the  bargainor, 
*'  and  so  it  is  stated  in  Salkeld's  manuscript;  besides,  it  appears 
"  from  both  the  books,  that  it  was  only  a  term  that  passed,  and 
"  consequently  it  was  not  an  enrolment  within  the  statute."  Mr. 
Justice  Buller  then  cites  a  case  from  Styles's  Reports,  (6)   where 

(1)  Gilb.   Ev.  86.    Baikie    v.  Chan<!-  (2)  Gilb  Ev.  86.     1  Keb.'llT. 

less,    3    Campb.  21.     Garrick  v.  Wil-  (3)  Bull.  N.  P.  25G. 

liams,  3  Taunt.    544.  Taylor    v.  Jones,  (4)   1  Salk.  280. 

1  Ld.  Raym.  746.  1  Keb.    117.  1  Salk.  (6)  3  Lev.  387.  S.  C. 

280.  (6)  Thurle  v.  Madison,  Styl.  462. 


462  Of  the  Proof  of  Deeds,  Agreements,  ^c.    [Cli.   8. 

Copy  of  Gh'n  C.  J.  is  reported  to  have  said,  that,  "  if  divers  persons  oeal 

enrolment.  ;  ijjiijj 

a  deed,  and  but  one  ol    them  acknowledge  the  deed,  and  tl)e  deed 

is  thereupon  enrolled,  this  is  a  good  enrohnent,  and  may  be 
given  in  evidence  at  a  trial,  as  a  deed  enrolled.  "  But  it  would 
"  be  of  very  mischievous  consequence,"  observes  Mr.  Justice 
Buller,  "  to  say,  therefore,  that  a  deed,  enrolled  upon  the  ac- 
"  knowledgment  of  a  bare  trustee,  might  be  given  in  evidence 
"  against  the  real  owner  of  the  land,  uitl)out  proving  it  executed 
"  by  him.  However,  that  lias  been  the  general  opinion,  and  it 
"  seems  fortified  in  some  degree  by  statute  10  Anne,  c.  18.  On 
"  the  other  hand,  it  seems  as  absurd  to  say,  that  a  release,  which 
"  has  been  enrolled  upon  the  acknowledgment  of  the  releasor, 
"  shall  not  be  admitted  in  evidence  against  him,  without  being 
"  proved  to  be  executed,  because  such  release  does  not  need 
"  enrolment:  and  in  fact  such  deeds  have  often  been  admitted: 
"  and  that  was  the  case  of  Smarlle  v.  Williams;  the  deed  there 
"  did  not  need  enrolment  yet,  being  enrolled  on  the  acknow- 
"  ledgment  of  the  bargainor,  it  was  read  against  him  without  be- 
"  ing  proved." 

Bargain  and  I"  the  case    of  Smartle  v.    Williams,  an  examined  copy  of  ihe 

sale  of  ternfi.  enrolment  of  a  deed  of  bargain  and  sale,  by  which  a  term  of 
years  was  assigned,  was  offered  in  evidence  without  any  proof  of 
the  bargainor's  sealing  and  delivery.  It  was  objected,  that  the 
copy  of  the  deed  enrolled  was  not  evidence,  because  the  interest 
assigned,  being  only  a  term,  passed  immediately,  and  the  enrol- 
ment afterwards  is  no  more  than  an  enrolment  of  an  obligatien: 
but  the  Court  over-ruled  this  objection,  and  held,  that  "  the 
acknowledgment  of  the  deed  by  the  lessor  before  the  master  in 
Chancery  is  good  evidence  against  himself,  and  against  all  who 
claim  under  him."  (1)  So,  in  the  case  of  Lady  Holcroft  v. 
Smith,  (2)  a  distinction  was  made  between  deeds  of  bargain  and 
sale  (enrolled  in  pursuance  of  the  statute  of  Henry  VIH.),  and 
other  deeds  enrolled,  and  it  was  held,  that  a  copy  of  a  deed, 
enrolled  for  safe  custody,  would  not  be  evidence  otherwise  than 
against  the  party  who  sealed  it,  and  all  claiming  under  him. 
It  does  not  appear  from  any  of  the  authorities  cited   by  the  Chief 

(1)3    Lev.    387.      Com.    Dig.    tit.        (2)  2  Freeman,  259. 
Evidence,  (B.  1.) 


Sect.  1.]     Of  the  Proof  of  Deeds,  Agreements,  ^c.  463 

Baron    Gilbert,    (excepting  the  case  of  Smartle    v.    Williams,)  Copy  o<"cnrol- 

against  what  party  the  copy  of  the  enrolment  was  offered   in  evi- 

dence.  If  the  enrolment  had  been  on  the  acknowledgment  of 
the  bargainor,  and  offered  as  evidence  against  him,  there  cannot 
be  a  doubt  of  its  being  admissible. 

With  regard  to  a  copy  of  the  cnrohiient  of  a  deed  of  bargain  Bargain  and 
and  sale,  indented  and  enrolled  in  pursuance  of  the  statute  of  hold. 
Henry  VIII.,  it  is  enacted  by  statute  10  Anne,  c.  18.  s.  3.  (1) 
"  (which  was  passed  for  supplying  a  failure  in  pleading  or  de- 
riving title  to  lands,  &c.  conveyed  by  such  deeds  of  bargain  and 
sale,  where  the  original  indentures  are  wanting,  as  often  happens, 
especially  where  divers  lands,  &c.  are  comprised  in  the  same  in- 
denture, and  afterwards  derived  to  different  persons,)  that, 
where  any  such  indenture  of  bargain  and  sale  enrolled  shall  be 
pleaded  with  a  profert,  the  party  so  pleading  may  show  forth 
and  produce  a  copy  of  the  enrolment;  and  such  copy,  examined 
with  the  enrolment,  and  signed  by  the  proper  officer,  having  the 
custody  of  the  enrolment,  and  proved  upon  oath  to  be  a  true 
copy,  shall  be  of  the  same  force  and  effect  as  the  indenture  of 
bargain  and  sale  would  be,  if  produced."  Before  this  statute, 
an  enrolment  of  the  deed  could  not  have  been  pleaded;  and 
though  a  deed  had  been  exemplified  under  the  great  seal,  yet  it 
was  necessary,  at  common  law,  to  show  forth  the  deed  itself 
under  seal,  and  not  the  exemplification  (2)  So,  by  the  common 
law,  a  constat  or  inspeximus  of  the  king's  letters  patent  could  not 
have  been  shown  forth  in  court,  but  the  letters  patent  themselves; 
but  the  statute  3  &  4  Ed.  VI.  c.  4.,  explained  by  stat.  13  Eliz.  c. 
G.,  "  palentees,  and  persons  claiming  under  them,  may  make  title 
in  pleading  by  showing  forth  an  exemplification  of  the  enrol- 
ment of  the  letters  patent,  as  if  the  letters  patent  themselves  were 
pleaded  and  shown  forth;"  and  now  they  are  to  be  given  in  evi- 
dence, in  the  same  manner  as  if  they  were  pleaded.  (3) 

The  rule  concerning   copies  of  enrolments  appears  then  to   be,  ' 
that  an   examined   copy  of  the  enrolment  of  a   bargain  and  sale 
of  freehold   in  lands,  pursuant    to   the  statute  of  Henry  VIII.,  is 

(1)  See  also  stat.  8  G.  2.  c.  6.  s.  22.,         (2)  Co.  Litt.  22.5.  b. 
concerning    deeds  of  bargain    and   sale         (3)  Olive  v.  Gwyn,  Hardr.  119. 
of  lands,  in  the  North  Riding  of  York- 
shire. 


^^^  Of  the  Proof  of  Deeds,  Jirreements,  ^c.   fCh.  8. 

^°jy  °''^"^°'-as    good   evidence    as    an    examined    copy  of  the   original  iiself; 

and    where   ihe  original    is  wanting,  (as  where  it  has    been  lost  or 

destroyed,  or  where  different  parcels  of  land  are  comprised  in 
liie  same  indenture  and  afterwards  derived  lo  different  persons,) 
(1)  a  copy  of  the  enrolment  signed  by  the  proper  officer,  who  has 
the  custody  of  the  enrolment,  and  proved  by  oath  to  be  a  true  copy, 
will  have  the  same  force  and  effect  as  the  original  itself  would 
have,  if  produced.  (2)  (y)  But  a  copy  of  the  enrolment  of  a  bar- 
gain and  sale  of  a  chattel  interest,  or  of  any  other  deed  enrolled 
for  safe  custody,  is  not  admissible  in  evidence,  except  as  against  the 
party  acknowledging  the  deed,  or  persons  claiming  under  him, 
an  examined  copy  of  the  enrolment  of  any  deed  is  admissible  an(i 
equivalent  to  an  examined  copy  of  the  original  deed.*  (z) 

Fourthly,   of  the  proof  of  execution  of  deeds  and  other  writ- 
ings. 


Proof  of  exe- 
cution, by 
subscribing 
\vitne83. 


The  general  rule  is,  that  a  deed  cannot  be  given  in  evidence 
without  proof  of  its  execution,  (a)  The  execution  of  every  at- 
tested instrument,  whether  under  seal  or  not,  ought  to  be 
proved  by  a  subscribing  witness,  if  he  can  be  produced,  and  is 
capable  of  being  examined.  (3)  The  subscribing  witness  alone 
is  competent  to  prove  the  execution,  because  he  may  be  able 
to   state  the    time  of  the   execution   and    some   circumstances  of 

(1)  See  preamble  of  sect.  3.  10  &  11  earliest  times.  The  ancient  process  for 
Anne,  c.  18.  bringing    the    subscribing    witness    into 

(2)  St.  10  Anne,  c.  IS.  s.  3.  See  court,  is  stated  in  Fortescuc  de  Laud. 
14  East,  231.     1  Schoal.  &  Lefr.  207.  Leg.  Ang  c.  32.     See  also  Jen  ins  cent. 

(3)  This  has   been  the  rule  from   the  p.  47.  case  89. 


*  The  enrolment  of  a  bargain  and  sale  under  the  statute  of  Henry  the  Eighth  is  a 
record;  thn  dale  of  the  enrohiient  is  a  material  part  of  the  fact  of  the  record,  and 
proof,  or  an  averment,  of  a  diHerent  date  is  not  admissible.  (The  King  in  aid  of 
Reed  v.  Hopper,  3  Price,  495.  511.)  An  examined  copy  of  the  memorial  of  an  as- 
signment of  a  judgment,  (the  memorial  being  required  by  act  of  parliament,)  is  evi- 
dence of  the  fiict  of  the  assignment;  and  the  attested  copy  of  the  men.orial  of  the 
registry  of  a  deed  is  evidence  of  the  fact  of  registry.  (Hobhouse  v  Hamilton,  I 
Schoal.  &  Lefr.  257.)  An  e.vamined  copy  of  the  enrolment  of  the  memorial  of 
an  annuity-deed  is  evidence  of  the  contents  of  the  original  memorial,  against  a  de- 
fendant, who  prepared  and  carried  the  memorial  to  be  enrolled.  (Baikie  v.  Chand- 
less,  3  Campb.  20.  Action  against  an  attorney  for  negligence  in  respect  to  a  memo- 
rial of  annuity.) 


(y)  8«e  Note  873,  p.  1243.  (?)  See  Note  874,  p.  1243.  (a)  See  Note 875,  p.  1261. 


Sect.  1.]   Of  the  Proof  of  Deeds,  /Igreementa,  ^-c.  465 

the   transaction,    vvliicli   may  bo  material  and   unknown   to   other  ^•"""/"'^  °'^" 

•'                            .                               •        r              ecution. 
persons.     On  an  indictment  therefore  against  an  a|)prentice  for  en- 

listing  himself  in   tho  army,  all  the  judges  held,  that    the  inJenturo 

of  apprenticeship  conld   not  be  proved  by  the  master,  but  that  it 

was  necessary  to  call  one  of  the  subscribing  witnesses.  (1)  {b) 

This  rule  is  so  strictly  observed,  that  an  acknowledgment  of 
the  obligor  himself,  admitting  that  he  executed  a  bond,  (2)  and 
even  an  admission  by  the  defendant  in  an  answer  to  a  bill  filed 
against  liira  for  a  discovery,  (3)  will  not  dispense  with  the 
testimony  of  the  subscribing  witness;  for  though  the  party  may 
acknowledge  the  bond,  yet  he  may  not  know  every  circum- 
stance attending  the  execution;  "  a  fact  may  be  known  to  the 
subscribing  witness,  not  within  the  knowledge  or  recollection  of 
the  obligor,  and  he  is  entitled  to  avail  himself  of  all  the  know- 
ledge of  the  subscribing  witness  relative  to  the  transaction."  (4)(c) 
The  rule  is  precisely  the  same,  whether  the  acknowledgment  is 
ofTered  as  evidence  against  the  party  himself  who  made  it,  (5) 
or  against  a  third  person;  (G)  or  whether  the  deed  is  an  existing 
instrument  or  cancelled;  (7)  or  whether  it  is  the  foundation  of 
the  action,  or  comes  in  collaterally  as  part  of  the  evidence  in  the 
cause.  (8)  {dy 

The  same  rule   applies  equally  to  all   written  instruments,  which  Itistraments 
are  attested.      Attested   notices    to  quit,  (9)  attested   warrants  to  "*'^  ""''^'' ^^'^'^ 
distrain,  (10)  attested   bills  of  exchange  or  promissory  notes,  are 
to   be   proved    by   the   attesting    witness;    and   in  the  case  of   a 
notice   to    quit,     the   circumstance    that    the    parly    upon    whom 

(1)  R.  V.  Jones,  East,  P.  C.  S22.  1  Jones  v  Langworlliy,  5  T.  R.  366; 
Leach,  Cr.  C.  208.  S.  C.  R.  v.  Harring-  and  as  to  the  case  of  II.  v.  Middlezoy, 
worth,  4  Maule  &  Selvv.  350.  on  the  authority  of  wliich    that  case  was 

(2)  Abbot  V.  Plumbs,  1  Doug.  216,  determined,  vide  supra .  p.  448. 
cited  by  Lawrence,  J.,  7  T.  R.  267,  and  (4)  Le  Blanc  J.  4  East,  53. 
2  East,  1S7.     In  an    action  of  covenant,  (5)   4  East,  53. 

payment    of  money    into    court,  on  one  (6)    I  Dougl.  216. 

of  the  breaches,    is  a-i  admission    by  the  (7)   Breton  v.  Cope,  Peake,  N.  P.  C. 

defendant,    which    dispenses    with  proof  30. 

of  the  execution    of  the    deed,   although  (8)   Manners,    q   t.  v.  Poslan,    4  Esp. 

one  of    the    pleas    pleaded    in    the    plea  N.   P.  C.  239. 

of  non  est  factum.     Randall  v.  Lynch,  (9)  Doe,  dem.    Sykes  v.  Durnford,  2 

2  Campb.  357.  Maule  &  Selw.  62. 

(3)  Call  V.  Dunning,  4  East,  53  (10)  Iliggs  v.  Dixon,  2  Sturkiu,  N. 
See   Bowie  and   another,    Assignees  of  P.  C.  ISO. 


(6)  See  Note  876,  p   1261    (c)  See  Note  877,  p    1283.  {d)  See  Note  87S,  p.  1263. 
Vol..    I.  59 


466  Of  the  Proof  of  Deeds,   Agreements,  ^c.   [Ch.   8. 

Proof  of  exe-    the  notice  was  served,  read  the  notice,  and  made  no  objection  to  it, 

' cannot  vary  the  rule.  (1)  (c)   In  all  these  cases,  the  attesting  witness 

ought  to  be  called  to  prove  the  execution,  if  he  can  be  j)roduced.  If, 
indeed,  the  attorney  to  a  party  to  the  suit  admit  the  execution  of 
the  instrument,  or  agree  that  the  other  party  should  act  upon  the 
instrument,  as  if  the  witness  himself  had  been  produced,  or  if  he 
admit  merely  the  hand-writing  of  the  subscribing  witness,  such 
admission  would  dispense  with  the  testimony  of  the  subscribing 
witness.  (2)  (/) 

Attesting  wit-  If  a  deed  is  attested  by  a  single  witness,  and  that  attesting 
te^nt^. '"*^°'^^^'  witness  is  disqualified  by  interest  from  proving  its  execution,  (not 
having  been,  at  the  time  of  the  execution,  incompetent  to  attest,) 
the  execution  is  to  be  proved  by  proof  of  the  signature  of  the 
attesting  witness.  (3)  {g)  But  the  other  party  cannot  object  to  an 
attesting  witness,  as  incompetent  on  the  ground  of  interest,  after 
having  requested  him  to  attest  the  execution,  with  full  knowledge 
of  the  situation  in  which  he  stood.  (4) 

Execution  un-       ^]^q  subscribing  witness  is  to  prove  the  delivery  of  the  deed,  or  if 

derpovper.  ....  / 

the  wntmg  is  not  under  seal,  the  hand-writing  of  the  party.  If  the 
person,  who  signed  the  instrument,  signed  it  for  another  under  a 
power  of  attorney,  the  power  ought  regularly  to  be  produced  and 
proved.  (5)(/i)  It  is  not  absolutely  necessary  that  the  witness  should 
see  the  parly  sign  or  seal:  if  he  sees  him  deliver  it  already  signed 
and  sealed,  or  merely  sealed,  as  his  own  deed,  it  will  be  sufficient. 
Nor  will  it  be  necessary  for  him  to  prove,  that  blanks,  which  had 
been  left  in  the  instrument  for  the  purpose  of  being  filled  up,  were 
filled  up  at  the  time  of  the  execution.  (6)  Some  evidence  of  the 
identity  of  the  party,  who  executed,  is  obviously  necessary.  (7) 

Signing.  Signing   is   not   an  essential  part  of    a   deed  at  common   law; 

(1)  2Maule&  Selw.  62.  (5)  Johnson   v.  Mason,  304.     1  Esp. 

(2)  Laiog  V.    Raine,  2  Bos.    &  Pull.     N.  P.  C.  89,  116. 

85.     Goldie  V.  Shuttleworth,  1    Campb.  (6)  England  v.    Roper,  1  Starkie,  N. 

70.     Young  V.  Wright,  1  Campb.    140.  P.  C.  304. 

Milward  v.  Temple,  1  Campb.  375.  (7)  Bull.  N.    P.    171.     Middlelon    v. 

(3)  Vide  infra,  p.  474.  Siindford,    4   Campb.    34.      Nelson    v. 

(4)  Honeywood  v.  Peacock,  3  Campb.  VVhittal,  1    Barn.  &  Aid.    20.     Parkins 
196.  V.   Havvkshaw,     2   Starkie,    N.   P-   C. 

239. 


(«)  See  Note  879,  p.  1265.    ( / )  See  Nolo  880,  p.  1265.    (§•)  See  Note  881,  p. 
1265     {h)  See  Note  882,  p.  126S. 


Sect.   1.]    Of  the  Proof  of  Deeds,  Agreements,  ^c.  467 

but  it  has  been  required  in  some  cases  by  act  of  parliament,  and  is  J^''°°^^j^^ 

often  requisite  for  llie   due  execution   of  powers.     In   such  cases, 

therefore,  signing  is  as  necessary  as  sealing,  (i) 

Sealing  is  essential  to  a  deed;  but  it  is  not  material  with  what  Sealing, 
seal  it  is  sealed,  {j)  Any  number  of  parties  may  use  the  same 
seal.  (I)  If  there  be  twenty  to  seal  one  deed,  (says  the  author  of 
the  Touchstone,)  and  they  all  seal  upon  one  piece  of  wax  and 
with  one  seal,  yet  if  they  make  a  distinct  and  several  prints,  this  is 
sufficient  sealing,  and  the 'deed  is  good.  (2)(/c)  Or  one  may  seal 
for  the  rest  with  their  consent,  and  the  deed  will  be  as  binding,  as 
if  everyone  had  put  his  several  seal.  (3)  Thus,  where  one  of  two 
defendants,  in  the  presence  of  the  other  and  by  his  authority, 
executed  a  bill  of  sale  for  them  both,  the  two  defendants  being 
partners  in  the  transaction,  but  there  was  only  one  seal,  and  it  did 
not  appear,  whether  the  seal  had  been  put  twice  upon  the  wax,  . 
the  Court  of  King's  Bench  held  that  no  particular  mode  of  delivery 
was  necessary;  and  that  it  was  sufficient,  if  a  party  executing  a 
deed  treated  it  as  his  own.  The  report  adds,  that  the  Court  relied 
principally  on  the  circumstance,  that  the  deed  had  been  executed 
by  one  defendant  for  himself  and  the  other,  in  the  presence  of 
the  other.  (4)  (Z)  If  a  bond,  executed  abroad,  is  declared  upon 
in  the  usual  form,  as  a  deed  made  and  sealed  by  the  defendant, 
and  the  instruinent  on  being  produced  appears  not  to  have  a  seal, 
but  instead  of  it  a  pen-mark  of  a  particular  kind,  evidence  is 
admissible  to  show,  that  it  is  the  custom  of  the  country  to  execute 
bonds  in  this  manner.  (5)  (m) 

With  regard  to  the  delivery  of  a  deed,  no  particular  form  or  Delivery  of 
ceremony  is  necessary;  it  will  be  sufficient,  if  a  party  testifies 
his  intention  in  any  manner,  whether  by  action  or  by  word,  to 
deliver  or  put  it  into  the  possession  of  the  other  party;  as,  if  a 
party  throw  the  deed  upon  a  table,  with  the  intent  that  it  may 
be  taken  by  the  other,  who  accordingly  takes  it;  or,  if  a  stranger 

(1)  Perkins,  ch.    2,  s.    135.     Sheph.         (3)  4  T.  R.  314. 

Touch.     55.        Com.     Dig.     tit.    Fait.  (4)  Ball     v.    Dunstervilie    and     an- 

(A  2.)  other,  4  T.  R.  313. 

(2)  Touchst.    ch.    4,   p.   55.      Filzh.  (5)  Adam   v.  Kerr,  1  Bos.  &    Pull, 
tit.  Feoffment,  pi.  103.  SCO. 


(i)  See  Note  8S3,  p.  1269.     (;)  See  Note  881,  p.  1277.     (/e)  See  Note  S85,  p. 
1280.     (I)  See  Note  886,  p.  1281.     (m)  See  Note  887,  p.  1281. 


468 


Oj  lite  l^roofof  Dtfjis,  Agreements^  <^c.     [Cli.  S. 


Troof  of 
execution. 

Corporation 


deliver  it  with  the  assent  of  the  party  to  the  deed.  (I)(n)  If  the 
deed  is  made  by  a  corporation,  actual  delivery  is  not  required; 
and  fixing  the  common  seal,  that  is  the  corporate  seal,  or  any 
other  used  for  the  occasion,  (2)  is  tantamoinil  to  a  delivery;  (o) 
but  if  the  corporate  body  has  given  a  letter  of  attorney  to  deliver, 
the  deed  is  not  theirs  until  delivered.  (3) 


It  has  been  before  mentioned,  that  proof  of  delivery,  without  any 
proof  of  signing  or  sealing,  will  be  sufficient  evidence  of  execution; 
for  the  party,  by  delivering  a  deed  purporifng  to  be  his  own,  adopts 
the  seal  and  the  signature.  But,  under  particular  circumstances, 
less  evidence  has  been  admitted  to  prove  the  execution.  It  ap- 
peared, in  one  case,  that  the  defendant,  a  few  minutes  after  having 
executed  the  deed,  brouglit  it  to  the  witness  in  an  adjoining  room, 
and  desired  him  to  attest  it;  another  attesting  witness  was  still  in 
the  room,  where  the  deed  had  been  executed;  and  it  was  further 
proved,  that  the  witness  was  acquainted  with  the  defendant's  hand- 
writing, and  that  the  defendant  knew  of  his  being  acquainted  with 
it:  and  that  the  defendant  had  acknowledged  the  instrument;  but 
there  was  no  proof  of  the  act  of  delivery,  and  no  reason  was 
shown,  why  the  other  attesting  witness  could  not  be  called  to 
prove  the  delivery;  in  this  case  the  Court  of  Common  Pleas  was 
of  opinion  that  the  whole  might  be  considered  as  one  transaction, 
and  that  there  was  suflicient  proof  of  the  execution.  (4) 

F.xecciion  of         The   distinction   between  execution  of  deeds   at    common  law, 
powtrs.  ^^j  executions   under  powers,  is    fully  established.     It   is  a  well- 

known  rule,  that  all  the  formalities  and  circumstances,  pre- 
scribed by  a  power,  are  to  be  strictly  observed.  If  a  particular 
number  of  attesting  witnesses  is  required,  there  must  be  that 
number.  If  they  are  to  attest  in  a  particular  form,  that  form 
must  be  followed,  and  they  must  attest  every  thing  that  is  ne- 
cessary for  tlie  execution  of  the  power.  The  following  are  the 
latest  cases  that  have  been  determined  upon  this  subject.  (5)(p) 

(1)  TLorougligood's  cnse,  9  Kop.  (4)  Pnike  v.  Meais,  2  Bos.  &  Tul!. 
1S7,  a.  Com.  Dig.  til.  Evidence,  217.  Powel  v.  BlacUet,  I  E?p.  N.  P. 
fA.  3.)  Co.  Liu.  ,*53C,  a.  [Note  223.]  C.  96.  Greilier  v.  Ncn!e,  Peake,  N. 
2  Barn.  &  Cress  82.  P.  C.  146. 

(2)  Perkins,  c.  2,  s.  132.  (5)  Tiiis   subject  is  fully  considered 

(3)  Co.  Lin.  36,  a.  [Note  222.]  in  Sugdcn's  Treatise  on  Powers. 


in)  See  Note  8S8,p.  12S1.   (o)  See  Note  883,  p.  1286.   (p)  See  Note  890,  p.  1287. 


Sect.  1.]   Of  the  Proof  of  Deeds^  Agreements^  ^c.  469 

{n  the  case  of  Wridit  v.   Wakeford,   (1)  where  a  power  was  Proof  of 

°  \  r      I       execution. 

created,   to  be  executed    by  trustees,   with    the  consent  of   the 

cestui  que  trusts  testified  by  writing  under  their  hands  and  seals^ 
attested  by  two  or  more  credible  witnesees.,  but  the  attestation  ex-  gi,„|;^tute°" 
pressed  only,  that  the  deed  had  been  scaled  and  delivered  by  the 
cestui  que  trusts  and  the  other  parties  in  presence  of  the  sub- 
scribing witnesses,  the  majority  of  the  Court  of  Common  Pleas 
determined,  that  the  power  had  not  been  duly  executed;  for  the 
question  is  to  be  determined  by  the  true  construction  of  the  terms 
of  the  attestation,  and  by  that  alone;  and  the  word  "  scaled," 
according  to  its  true  acceptation  and  ordinary  sense,  cannot  be 
considered  as  implying  that  the  [larties  who  put  their  seals  to 
the  instrument,  put  also  their  hands  to  it,  or  signed  it  in  the  pre- 
sence of  the  witnesses.  It  was  further  determined  in  this  case  (2), 
that  a  subsequent  attestation,  indorsed  upon  the  instrument  after 
the  death  of  one  of  the  cestui  que  trusts^  and  expressing  that  the 
parties  had  also  signed  in  the  presence  of  the  subscibing  wit- 
nesses, would  not  cure  the  original  defect;  on  the  ground,  that 
the  attestation,  to  constitute  a  due  and  effectual  execution  of  the 
power,  ought  to  make  a  part  of  the  same  transaction  with  the 
signing  and  sealing,  such  being  the  usual  and  common  way  of 
attesting  the  execution  of  all  instruments  requiring  attestation. 

In  the  late   case  also  of  Doe,   on  the   demise  of  Mansfield    v. 
Peach,  (3)*  where  the  power  was   directed  to  be   executed  "  by 

(1)  4Taunt.    214  ;  Mansfield  C.    J.  (2)  See  also  17  Ves.  457. 

dissenting.      7     Taunt.   361      17    Vea.  (3)  2  Maule  &  Selw.   576.     Wright, 

454,  S.  C.  V.  Barlow,  3  Maule  &,    Selw.  512  S.  P. 


*  In  consequence  of  the  decision  in  the  cases  of  Wright  v.  Wakeford,  and 
Mansfield  v.  Peach  (which  might  afiect  the  titles  of  purchasers,  in  case  the 
fact  of  signature  were  not  expressed  in  the  memorandum  of  attestation,)  an 
net  of  parliament  was  passed,  (a)  which  enacts,  "  that  every  deed  or  other  in- 
strument, already  made  with  the  intention  to  exercise  any  power,  authority, 
trust,  or  to  signily  the  consent  or  direction  of  any  person,  whose  consent  or 
direction  may  be  necessary  to  be  so  signified,  shall,  if  duly  signed  and  executed, 
and  in  other  respects  duly  attested,  be  (from  the  date  thereof,  and  so  as  to  es- 
tablish derivative  titles,)  of  the  same  validity  and  eflect,  and  proveable  in  the 
like  manner,  as  if  a  memorandum  of  attestation  of  signature,  or  of  being  under 
hand,  had  been  subscribed  by  the  witness;  and  the  attestation,  expressing  the 
fact  of  sealing  and  delivering,  without  expressing  the  fact  of  signing  or  any 
other  form  of  attestation,  shall  not  exclude  the  proof  or  the  presumption  of  signa- 
ture."    This  statute,  it  is  to  be  observed,  is  only  retrospective. 

(({)  St.  54  G.  3,  c.  168. 


470  Of  the  Proof  of  Detds,  Agreements,  ^c.     [Ch.  8. 


Proof  of  any  deed  or  writins^  under  the  hands  and  seals  of  ihe  parties,  to  be 

execution.  -^  i    •        ■  r 

by  tlieni   duly  executed   in   the   presence   of,  and  attested  by  two 

or  more  wilnesses,^^  and  the  attestation  was  only  of  the  sealing  am\ 
delivery,  the  Court  of  King's  Bench  were  of  opjinion,  that,  in 
order  to  make  a  due  execution  of  the  power  in  this  case,  the 
instrument  ought  to  have  been  made  with  all  the  forms  re- 
quired by  the  power,  and  that  tliere  ought  also  to  have  been  an 
attestation  of  its  execution  with  all  those  forms;  and  with  re- 
spect to  the  second  point,  which  arose  here  as  well  as  in  the 
case  of  Wright  v.  Wakeford,  the  Court  said,  it  was  not  neces- 
sary to  determine,  at  what  precise  time  the  attestation  should  be 
made,  but  that  the  attestation,  subsequent  to  the  death  of  one 
of  the  parties,  could  not  give  to  their  act  an  operation,  which  it 
never  had  during  the  lives  of  the  parties. 

In  another  case,  where  lands  were  limited  to  such  uses,  as  the 
donee  should  direct  by  deed  or  writing,  under  his  hand  and  seal 
attested  by  two  or  more  credible  witnesses,  the  Court  of  Common 
Pleas  determined,  that  the  power  was  not  effectually  executed  by 
a  will,  signed  and  sealed,  but  attested  by  the  subscribing  witnesses 
as  being  signed  in  their  presence,  without  noticing  the  sealing; 
nor  could  the  defect  be  cured,  by  calling  on  one  of  the  witnesses 
to  prove,  that  the  will  was  actually  sealed  in  their  presence,  as  well 
as  signed  (1). 

In  the  case  of  Moodie  v.  Reid,(2)  the  same  court  determin- 
ed, that  a  power,  to  be  executed  by  a  writing  signed  and  published 
in  the  presence  of  attesting  witnesses,  is  not  properly  executed  by 
an  attestation,  which  notices  the  signing  only,  and  not  the  pub- 
lication. The  question  in  that  case  arose  on  a  marriage- 
settlement,  which  contained  a  power  to  limit  the  uses  of 
money  in  the  funds,  by  any  writing  or  appointment  in  the 
nature  of  a  will,  to  be  signed  and  published  in  the  presence  of,  and 
attested  by  two  or  more  credible  loitnesses;  the  testatrix  at  the 
close  of  her  will  signed  her  name,  and  two  names  were  sub- 
scribed under  the  word  "witness;"  the  subscribing  witnesses 
proved  that  the  testatrix  signed  in  their  presence,  and  that  they 
understood,   from  what  the   testatrix  said    at   the   time  of  signing, 

(1)  Doe  dem    Hotchkisg    v.    Pearce,         (2)  7  Taunt.  355. 
6  Taunt.  402.     2  Marsh  ill,  102,  S.  C. 


Sect.  1.]    Of  the  Proof  of  Deeds ^  Agreements,  ^c.  471 

that  the  paper  was  hor  last  will.     The  Court  of  Common   Pleas  Proof  of 

_  execution. 

held,  on  a  case  directed  for  their  opinion  by  the  Vice  Chancellor, " 


that  the  power  had  not  been  properly  executed.  Lord  Ch.  Justice 
Gibbs  said,  "  A  will,  as  such,  requires  no  publication;  but  here 
the  power  is  to  be  exercised  by  a  will  signed  and  published;  there 
must  be  some  publication  here;  the  will  must  be  signed,  published, 
and  attested;  there  must  therefore  be  some  attestation  of  signing 
and  publication.  After  adverting  to  the  difficulty  of  defining  the 
term  ^'-  publication,^^  as  applied  to  a  will,  the  Lord  Chief  Justice 
added,  "  I  can  only  suppose  it  to  be  that,  by  which  a  person  de- 
signates, that  he  means  to  give  effect  to  a  paper  as  his  will." 

Where,  however,  the  deed,  by  which  the  power  was  created, 
directed,  not  that  the  instrument  should  be  attested  by  witnesses, 
but  that  the  power  should  be  executed  by  any  writing  to  be 
signed  and  sealed  in  the  presence  of  two  or  more  icitnesses,  and  the 
deed,  in  pursuance  of  the  power  was  expressed  to  be  executed 
in  the  presence  of  the  witnesses,  but  the  attestation  applied 
only  to  the  sealing  and  delivery,  the  Chancellor  was  of  opin- 
ion, that  in  such  a  case  it  might  be  properly  left  to  the  jury 
to  presume,  that  the  deed  was  signed,  as  it  professed  to  be, 
in  the  presence  of  the  witnesses,  who  attested  the  sealing  and 
delivery.  (1) 

The    rule   which    has   been  before  mentioned,    respecting    the  Several  parties 

sealing  by  several  parties  on  one  piece  of  wax,  and  with  one  seal,      <"»esea. 

is  applicable  to  all   deeds  at  common   law;  and   such   sealing   will 

bind   the  parties   by  whose   authority  the  deed   is   executed.     But 

this  rule  does  not   extend   to   warrants   or  orders  executed   under 

a  power.     In  a   case   lately   determined   by   the  Court  of  King's 

Bench,  (2)  where  the  question  was,   whether   a  certificate,  signed 

by   two  churchwardens  and   one   overseer,  but   bearing  only  two 

seals,    was  a    lesal    and    valid    certificate   under   the   stat.   8  &  9  Certificate  of 
Axr    <r,  /i-i  •  -r-  settlement. 

W.  3.  c.    oO,  (which  requires  certmcates  to  be  under   the  hands 

and  seals  of  the  church  wardens  and  overseers,  or  the  major  part 

of  them,  or  under  the  hands   and  seals  of  the   overseers,  where 

there   are    no   church-wardens,)    the  Court   determined,   that  the 

certificate  had  not  been  properly    executed.     The    facts  of  the 

(I)   M'Q,ueen  v.   Farquhar,    11   Ves.         (2)  R.    v.   Austrey,    Easter    Term, 
467.     17  Ves.  458.  1817,  Maule  &  Selw.  MS. 


472  ■    Of  the  Proof  of  Deeds,  Agreements,  ^c.  [Ch.    a. 


execulion. 


Tronf  of  (.ggQ  ;vere  shortly   these.     The  certificate  was  duly  attested,  and 

allowed  by  magistrates,  and  purported  to  be  the  certificate  of  A. 
B.  and  C.  D.  churchwardens,  and  of  E.  F.  overseer;  one' seal 
was  opposite  to  the  two  first  names,  and  the  other  seal  opposite 
to  the  last;  no  trace  of  any  other  seal  appeared  on  the  instrument, 
and  the  certificate  was  above  thniy  years  old.  Lord  Ellen- 
borough  C.  J.,  in  delivering  the  judgment  of  the  Court,  said, 
"  In  considering  how  far  the  cases  of  deeds  are  ap|)licable  to 
the  present,  it  is  to  be  recollected,  that  in  those  cases  the  par- 
ires  alone,  under  whose  authority  the  deeds  were  executed,  are 
bound  by  them.  But  the  present  is  the  case  of  the  execution 
of  a  power,  which  binds  and  operates  upon  other  persons  at 
their  peril,  and  subjects  them  to  indictments  as  for  crimes,  in 
case  of  their  disobedience  to  the  j)ower,  if  it  be  duly  executed. 
In  the  execulion  of  powers,  all  the  circumstances  required  by 
the  creators  of  the  power,  however  unessential  and  otherwise 
unimportant,  must  be  observed,  and  can  only  be  satisfied  by  a 
strictly  literal  and  precise  performance.  (1)  It  is  also  a  general 
principle  of  law,  wherever  a  power  is  given  to  particular  persons,  to 
do  a  written  act  in  a  particular  manner  or  under  certain  particular 
circumstances,  whether  it  be  to  parish  officers  or  magistrates,  (as, 
to  grant  certificates,  under  which,  if  duly  executed,  other  per- 
sons, especially  public  officers,  are  bound  to  act — or  to  grant 
warrants,  or  make  order,)  that  their  authority  must  appear  upon 
the  instrument  itself.  It  must  thereby  appear,  that  they  are 
the  persons  authorized,  and  that  the  certificate,  warrant,  or 
order,  was  made  in  the  manner  and  under  the  circumstances  re- 
quired. Otherwise  the  certificate,  warrant,  or  order,  is  not 
obligatory,  but  void.  (^)  The  statute  is  to  be  construed,  in  a  case 
like  this,  according  to  common  parlance  and  understanding, 
and  so  as  to  be  a  security  to  persons,  who  are  bound  to  obey 
the  powers  given  by  it  at  their  peril;  and  it  is  not  to  be  con- 
strued according  to  what  may  be  brought  within  its  words  by 
nice  legal  reasoning,  applicable  merely  to  deeds.  In  the  case 
of  Thaire  v.  Thaire,  (2)  where  there  was  a  submission  to  arbi- 
tration, 'so  that  the  award  be  delivered  under  their  hands 
and  seals,'  it  was  made  a  question,  whether  an  award,  sealed 
but   not    signed,  was  a  good  award;    the  point    reserved    being, 

(1)  See^Hawkins  v.  Kemp,  3  East,  440.     (2)  Palmer,  109,  112. 
iq)  See  Note  891,  p.  1287. 


Sect.  1.]   Of  the  Proof  of  Deeds,  Agreement!^,  ^-c.  473 

whether  the  sealing,  wliich    was  virtually  a  signing,  was  sufficient,  ^^^^^  °^ 

II  I  I        r     I  I       •      •  1111.  1     .       .      exucution. 

or  whether   the  words  ol  the    submission  should   be   intended,    in . 


common  parlance,  an  actual  writing  of  their  hands.  The 
Judges  of  the  Court  of  Common  Pleas,  were  at  first  divided  in 
opinion  on  that  point.  It  was  finally  decided,  however,  by  the 
whole  Court,  that  a  virtual  signing  would  not  do,  but  that  there 
ought  to  be  an  actual  signing  under  their  hands.  So  in  the  pre- 
sent case,"  said  Lord  Ellenborough,  "  where  an  act  Is  to  be  under 
the  hands  and  seals  of  the  three,  a  mere  virtual  sealing  by  any  of 
the  three  appears  to  us  not  sufficient;  but  it  ought  to  be  under  the 
actual  distinct  seal  of  each,  that  is  to  say,  under  a  distinct  and 
several  sealed  impression  adopted  by  each  of  the  parties."  (r) 

If  a  deed  or  other  written   instrument  is  attested,    but  none  of  Proof  of*  Imnd- 

,  .  I  I  r    I     •  •        1  writing  of  sub- 

the  Witnesses  are  capable  of  being  examined,  the  course  then  scribing  wit- 
is  to  prove  an  attesting  witness's  hand-writing  ;  and  this  will  be  "*^^^' 
a  sufficient  proof  of  the  execution  ;  as,  where  the  attesting  wit- 
ness is  dead — or  blind  (1)  (s) — or  incompetent  to  give  evidence, 
either  from  insanity,  (2)  or  from  infamy  of  character,  (3)  or 
from  interest  acquired  after  tJie  execution  of  the  deed,  (4)  (/) — or 
where  the  subscribing  witness  is  absent  in  a  foreign  country,  (5) 
or  out  of  the  jurisdiction  of  the  superior  English  courts,  so  as 
not  to  be  amenable  to  their  process,  (6) — or  where  he  cannot 
be  found   after  strict  and   diligent  enquiry.  (7)*  (w)    Illness  is   not 

(1)  Wood  V.  Drury,  1  Ld.  Raym.  (c,)  Adam  v.  Kerr,  1  Bos.  &  Puil. 
734,  by  Holt  C.  J.  361. 

(2)  Vin.  Abr.  tit.  Evidence,  (T.  b.  (6)  Prince  v.  Blackburn,  2  East,  250. 
48.)  jl.  12.  Burnett  V.  Taylor,  9  Ves.  1  Bos.  &  Pull.  361.  Ward  v.  Wells. 
381.     Currie  V.  Child,  3  Campb.  283.  1  Taunt.    161.     Hodnett  v.    Forman,    1 

(3)  Jones   v.    Mason,    2    Stra.    833.     Starkie,  N.  P.  C.   90. 

Com.  Dig.  tit.  Testmoigne,  B-  3.  (7)   .Anon,    case,    12   Mod.    607.,    by 

(4)  Goss  V.  Tracy,  1  P.  Wms.  287.  Holt  C.  J.  7  T.  R.  266,  Cunliffe  v. 
2S9.       Godfrey    v.  Norris,    1    Stra.    34.     Sefton,  2    East,  183.     Crosby  v.    Percy, 

Swire  v.  Bell,  5    T.    R.   371.     Buckley  1  Taunt.    365.     Parker    v-    Hoskins,    2 

V.  Smith,  2  Esp.N.  P.  697.  See  Honey-  Taunt.    223.       Wardel    v.     Fcrmor,    2 

wood  V.  Peacock,  infra.,  p.  476.  Campb.  282.     Burt  v.    Walker,  4  Barn. 

(5)  Coghlan    v.  Williamson,   1  Doug.  &  Aid.  697. 
93.     Wallisv.    Delancey,  7  T.    R.  266. 


*  In  the  case  of  Cunliffe  v.  Sefton  (2  East,  183.,)  it  was  proved,  that  dili- 
gent enquiry  had  been  made  after  one  of  the  attesting  witnesses  to  a  bond  at 
the  residence  of  the  obligor  and  abligee,  without  being  able  to  obtain  any 
intelligence  of  such  a  person;  itiis  was  considered  a  sufficient  ground  for  let- 
ting in  proof  of  the  hand-writing  of  the  other  attesting  witness,  who  had  since 
become    interested    as    administratrix    to    the    obligee,    and    was  a    plaintiff  on  the 


(r)  See  Note  S92,  p.  1293.      (s)  See  Note  893,  p.  1293      (t)    See  Note  894,  p. 
1293.     (u)  See  Note  895,  p.  1293. 

Vol.   I.  GO 


474  Of  the  Proof  oj  Deeds,  Agreements,  ^c.      [Ch.  8. 

Proof  of  a  sufficient   reason   for  dispensing   with  the   attendance  of  a  sub- 

scribing  witness:  siicli   a  relaxation  of  the   rule   has  not  yet  been 

made,  and  it  would  obvitusly  be  liable  to  great  abuse.  (1)  {v) 

The  proof  of  the  subscribing  witness's  hand-writing,  in  the 
cases  above  n)eniioned,  is  evidence  of  the  execution  of  tho 
instrument  by  the  party  therein  named:  the  se;iliug  and  deli- 
very will  be  presumed  ;  and,  for  the  purpose  of  proving  the 
execution,  il  will  not  be  necessary  to  prove  also  ihe  hand-writing 
of  the  party.    (2)*  {w)     With  a    view,   indeed,   to   establish   the 

(1)  Harrison  v.  Blades,  3  Campb.  Lord  Ken)  on  held,  that  the  proof  of 
45S.,  by  Lord  Ellenboiough-  The  re-  the  hand-wriling  of  one  of  the  sub- 
ceipts  of  a  tax-gatherer  were  offered  scribing  vvilnesses,  who  was  abroad, 
in  evidence,  and  as  he  was  at  the  point  was  not  sufficient,  in  an  action  opor> 
of  death,  it  was  proposed  to  prove  his  a  bond,  and  that  the  hand- writing  of 
hand-writing.  See  Jones  v.  Brewer,  4  the  obligor  should  also  be  proved. 
Taunt.  -J7.  Such   additional  proof  might   have  been 

(2)  Prince  v.  Blackburn,  2  East,  necessury  in  that  case,  to  connect  the 
250.  Adam  v.  Kerr,  1  Bos.  &  Pull,  defendant  with  the  bond.  This  is  not 
360.  Milvvard  v.  Temple,  1  Campb.  unlikely  to  have  been  the  groand  of 
S75.  Gough  V.  ("ecil,  1  Selw.  N.  P.  Lord  Kenyon's  opinion.  The  note  of 
516.,  cited  from  IMS.  In  the  case  of  the  case  is  very  short;  and  the  ground 
VVhIMs  v.  Delanoy,  7    T.  R.  266.   n.  (f)  is  not  stated. 


record.  In  the  case  of  Crosby  v.  Percy  (1  Taunt.  365,")  the  Court  of  Common 
Pleas  held,  that  proof  of  the  hand-writing  of  an  attesting  witness  had  bc«r> 
properly  admitted,  after  proof  that  diligent  enquiry  had  been  made  for  him  at 
his  usual  place  of  residence,  where,  in  answer  to  the  enquiry,  information  was 
received,  as  also  from  the  father  of  the  attesting  witness,  that  he  had  absconded 
to  avoid  his  creditors,  and  was  not  to  be  found.  In  the  case  of  Wardel  v. 
Fermor  (2  Campb.  282,)  evidence  of  the  band-writing  was  admitted,  on  proof 
that,  twelve  months  before,  a  commission  of  bankrupt  had  been  sued  out  against 
the  subscribing  witness,  who  had  not  appeared  at  the  time  fi.xed  for  his  surrender. 
Similar  evidence  was  admitted  in  the  case  of  Parker  v.  IJoskins  (2  Taunt. 
223,)  an  enquiry  having  been  made  for  the  subscribing  witness  at  the  Admiralty, 
whence  it  appeared  by  the  last  re  ort,  that  he  was  serving  on  board  of  some 
ship,  but  in  what  ship  it  was  not  known.  And  in  another  case,  where  it  ap- 
peared, that  one  of  two  subscribing  witnesses  was  dead,  and  the  other  hiid  jfotie 
abroad  as  a  marine,  about  twenty  years  before  the  trial  of  the  cause;  and  tho 
witness,  who  spoke  to  this  latter  fact,  said,  he  had  not  heard  any  thing 
of  him  since;  but  that  he  had  applied  for  information  to  the  brother  of  the 
marine,  who  informed  liim,  that  he  did  not  know  wliere  he  was,  whether  in  England 
or  abroad;  the  Court  of  King's  Bench  held,  that  proof  of  this  sul)scribing  wit- 
ness's hand-writing  ought  to  have  been  admitted;  and  Lord  F.llenboroiigh  said, 
the  proof  of  the  fact  of  the  subscribing  witness's  going  abroad  twenty  years 
ago  (so  large  a  portion  of  the  life  of  man,)  and  never  having  been  heard 
of  since,  would  of  itself  be  sufficient.  The  case  was  thought  to  be  so  clear, 
it  was  not  argued  on  either  side.  Doe,  dem.  Johnson  v.  Johnson,  Leicester  Lent. 
Ass.  1SI8,  K.  B.  Trin.  term,  June  5.  It  is  not  possible,  by  any  general  rule, 
to  ascertain  precisely  in  what  cases  this  proof  of  lt>e  subscribing  witness's  hand- 
writing will  be  admitted.  Each  case  must  depend  upon  its  own  peculiar  circum- 
stances. But  in  all  c.;ses  it  ought  to  be  satisfactorily  proved,  that  a  »easonable, 
honest  and  diligent  enquiry  has  been  made,  without  any  evasion,  and  without  any 
design  to  overlook  the  witness. 

■*  In  the    case  of  a  deed  executed   in    the    East    Indies,   and    attested    by   a  wit- 
ness resident  there,    the  stat.  26KJ.  3,  c.  57,  S.  38,  enacts,    "  that  it  shall  bo  suf- 


iv)  See  ^oXfi  896,  p.  1299.     (w)  See  Note  S97,  p  1299. 


Sect.  I.]    OJ  the  P-roof  of  Deeds,  Agreements,  ^c.  476 

identity  of  the  party,  ihot   is,  that  tl)c   person  who   executed  the  ^''^^^'.^^ 

•      ,                            I           •              1                      1             ,             r      r  execution, 
instrument,  is  the  party  to   the  suit,  or  the  party  charged,  proof  ot 

the  parly's  hand-writing  will  he  most  important,  and  the  most  sa-  I<^entityof 
tisfactor}^  evidence  that  can  be  produced.  In  an  action  on  a  bond, 
or  on  a  promissory  note  or  bill  of  exchange,  some  evidence  of 
identity  appears  to  be  necessary.  (l)(x)  Proof  of  the  witness's 
signature  proves  only  this  fact,  that  the  instrument  in  question  was 
executed  by  a  person  in  a  certain  name;  it  does  not  prove  the 
other  important  fact,  that  the  defendant  is  tiiat  person.  Some  evi- 
dence seems  necessary  to  connect  the  defendant  with  the  bond  or 
note.  Proof  of  his  signature  on  tiie  instrument  would  be  decisive. 
But  such  proof  is  not  indispensably  necessary;  and  much  slighter 
evidence  would,  in  the  first  instance,  be  sufficient.  Evidence  that 
(he  defendant  was  present,  when  the  note  was  prepared  by  the 
subscribing  witness,  will  serve  to  connect  him  with  the  instru- 
txsent.  (2) 

Where  there  is  no  subscribing  witness  ots  the  deed;  or  Troof  of  the 
where  the  subscribing  witness  denies  having  any  knowledge  of  ture. 
the  execution,  which  is  the  same  thing  as  if  there  were  no  wit- 
ness at  all;  (3)  (y)  or  where  the  name  of  a  fictitious  person  is 
inserted;  (4)  or  where  the  person,  who  has  put  his  name  as 
subscribing  witness,  did  so  without  the  knowledge  or  consent  of 
the  parties;  {5)(z)  or  if  after  diligent  enquiry  nothing  can  be  heard 
of  the  subscribing  witness,  so  that  he  can  neither  be  produced 
himself,  nor  his  hand-writing,  proved;  in  these  cases,  the  exe- 
cution  may  he   proved,  by   proving   the  hand-writing  of  the  party 

(1)  Nelson  v.  WhiUai,  1  Barn.  Sc  Campb.  635.,  by  Lawrence  J.  Lemon 
Aid.  2L  See  also  Memot  v.  Bates,  v.  Dean,  ib.  636.  n.  by  Le  Blanc  J. 
Bull.  N.  P.  171.  Middleton  v.  Sand-  Talbot  v.  Hodson,  7  Taunt.  251.— 
ford,  4  Campb.  24.  Phipps   v.    Parker,    1    Campb.    412.     is 

(2)  Nelson    v.    Whittal,   1    Barn.    &  therefore  over-ruled. 

Aid.  19.  (4)   Fasset   v.    Brown,  PcaUe,  N.    P. 

(3)  Grellier  v.    Neale,  Peake,   N.  P.     C.  23., 

C    145.,  ruled  by  Lord    Kenyon.     Ley         (5)   M'Craw    v.    Gentry,    3    Campb. 
V.    Ballard,  3    Esp.    N.    P.    C.  173.,  by      232.     4  Taunt.  220. 
Ld.    Kenyon.     Fitzgerald    v.    Elsee,    2 


ficient  to  prove  the  hand-writing  of  the  party  to  the  deed,  and  of  the  attesting 
witness,  and  that  the  witness  is  resident  in  the  East  Indies"  When  this  statute 
was  passed,  the  present  rule  respecting  the  proof  of  the  execution  of  a  deed  had 
not  been  established. 


(jr)  See  Note  898,  p.  1302.  (t/)  See  Note  899,  p.  1303.  (  =  )  See  Note  900,  p.  1305. 


476  Of  the  Proof  of  Deeds,  Agreements,  ^c.    [Ch.  0. 

Proof  of         to  the   deed;  or  by   any  person   present  at    the  execution,  ihougl) 

execulioii.  .  '  .  / .  \  ■  c      r  i     •     •  e 

he  IS  not  endorsed  as  witness;  (I)  or  by  prooi  ol  an   admission  ot 

the  parly  himself,  that  he  executeJ  the  deed,  (a) 

In  ihe  case  of  Swire  v.  Bell,  (2)  the  Court  of  King's  Bench 
appears  to  have  held,  that  when  an  attesting  witness  to  a  deed 
was  interested  in  the  provisions  and  object  of  the  deed  at  the 
time  of  the  execution,  and  continues  so  at  the  time  of  the  trial, 
proof  of  his  signature  would  not  be  sufficient  proof  of  the  exe- 
cution, [b)  But  when  the  defendant  himself  knew  of  the  situation 
in  which  the  attesting  witness  stood  at  the  time  of  the  execution, 
and  yet,  being  party  to  the  deed,  desired  him  to  attest,  it  is  reason- 
able, that  he  should  not  be  allowed  to  object  to  such  witness  at  the 
trial,  as  incompetent  on  the  ground  of  interest.  (3) 

The  proof  of  the  party's  hand-writing,  in  the  cases  before  men- 
tioned, is  a  sufficient  ground  for  presuming,  that  the  deed  was, 
as  it  purports  to  be,  sealed  and  delivered.  (4)  In  the  case  of 
Talbot  v.  Hodson,  an  action  on  a  bond,  (5)  the  subscribing 
witness  was  first  called  to  prove  the  execution,  but  on  his  de- 
nying that  he  saw  any  thing  of  the  execution,  the  co-obligor 
was  examined,  having  had  a  release  to  render  him  competent; 
this  witness  stated,  that  there  was  a  seal  on  the  bond,  when  the 
defendant  wrote  his  name  opposite,  but  that  the  defendant  did 
not  seal  it  in  the  witnesse's  presence,  nor  put  his  hand  to  the  seal, 
nor  delivered  the  bond  as  his  deed.  The  Lord  Ch.  Justice 
Gibbs  considered  the  circumstance  of  the  defendants  writing  his 
name  opposite  the  seal  on  an  instrument,  in  which  it  was  affirmed 
that  he  sealed,  was  evidence  of  a   sealing  and   delivery;  and  the 

(1)  Com.  Dig.  tit.  Evidence,  (B.  3.)  proof    of    his    signature    was    not   suffi- 

(2)  5  T.  R.  371.  This  was  an  action  cient;  but  as  it  appeared  that  the 
on  a  bond,  given  to  indemnify  a  town-  signature  of  the  obligor  had  alio  been 
ship  against  the  charge  of  a  bastard  proved,  the  rule  for  a  new  trial  was 
child.       The    only    subscribing    witness  refused. 

was  at  the    time  of   the   attestation,  as  (3)   Honeywood       v.       Peacock,     8 

well  as    at    the    time    of    the    trial,    a  Campb.  196. 

payer  and  contributor  to   the    rates   of  (4)  Grellier  v.  i^eale,  Peakc,  N.   P. 

the     township.      On    being     called     to  C.    145.      Burrow.s   v.    Lock,    10    Ves. 

prove    the    execution    he   was    objected  474. 

to,     but    admitted;       and    the    plaintiff  (5)   7  Taunt.    251.     The    jury  found 
had    a    verdict.       On    a     motion    for    a  a    verdict    for    the    plaintiff.     Both  wit- 
new  trial,  ilie   Court    of  K.  B.    were  of  nesses,    who    were     called,  were    very 
opinion,  that    the   witness    was    interest-  near  relations  of  the  defendant. 
ed    and      incompeteut,    and     that     the 

(a)  ?ee  Note  901,  p.  1303.       {h)  See  Ts'ote  »02,  p    1310. 


Sect.   1.]   Of  the  Proof  oj  Deeds,  Agreements,  ^c.  477 

Court  of  Common  Pleas  were  of  opinion,  that  the  evidence  had  been 
properly  left  to  the  jury,  and  that  they  had  drawn  the  true  conclusion. 

There  are   some   exceptions  to   the  general   rule,  as  to  the  ne-  F.xcepiiona. 
cessity  of  proving  the  execution  of  deeds  and  other  writings,  which 
mav  be  conveniently  mentioned  in  this  place. 

First,  if  the  deed  is  thirty  years  old,  it  may  be  admitted  in  l-  De«d«,  30 
evidence  without  any  proof  of  its  execution;  such  a  deed  is  said 
to  prove  itself.  (1)  (c)  The  same  rule  applies  generally  to 
deeds  concerning  lands,  to  bonds,  (2)  receipts,  (3)  letters,  (4) 
and  all  other  ancient  writings;  the  execution,  or  writing,  of 
which  need  not  be  proved,  provided  they  have  been  so  acted 
upon,  or  brought  from  such  a  place,  as  to  afford  "  a  reasona- 
ble presumption  that  they  were  honestly  and  fairly  obtained  and 
preserved  for  use,  and  are  free  from  suspicion  of  dishonesty.  (5)(f/) 

If  there  is  any  blemish  in  the  deed  by  rasure  or  interline- 
ation, the  deed  ought  to  be  proved,  though  above  thirty  years 
old,  (6)  (e)  and  the  blemish  satisfactorily  explained.  (/)  In  such  a 
case,  the  jury  would  have  to  try,  whether  the  rasure  or  inter- 
lineation was  before  or  after  the  delivery  of  the  deed;  for,  if 
the  rasure  was  before  that  time,  the  deed  is  still  valid  and 
binding;  it  is  only  after  the  delivery  that  a  rasure  or  inter- 
lineation can  effect  a  deed,  and  even  then  they  are  in  some  cases 
immaterial,  {g)  Now,  to  ascertain  the  time  of  delivery,  the  first 
and  best  evidence  to  be  resorted  to  is  the  testimony  of  a  sub- 
scribing   witness,    if  any    can   be   produced;    or,    if  there    is    no 

(1)  2  Term  Rep.  471.  Bull.  N.  P.  among  the  title  deeds  kept  at  the  fam- 
255.  ily-seat,     was     admitted     as      genuine, 

(2)  Governor  of  Chelsea  Water-  without  proof  of  the  hand-writing  by 
works  V.  Cowper,  1  Esp.  N.  P.  C.  275.      Dallas,  C.  J.  in  C.  P.  sitt.  after   Mich. 

(3)  D.  &  Ch.  of  Ely  v.  Stewart,  2  T.  1821,  S.  P.  by  Lord  Tenterden,  K. 
Atk.  44.  Fry  v.  Wood,  1  Selw.  N.  P.  B.  sitt.  after  Trinity  Term,  1823,  on  se- 
492.     Manby    v.    Curtis,    1  Price,  232.     cond  trial. 

Bertie  v.  Beaumont,  2  Price,  308.    Bui-  (5)   Vin.    A.  B.  tit.  Evidence,   (A.  b. 

len  V.   Mitchel,    2  Price,  399.       4  Dow.  5,)    cited    7    East,    291.     Bull.   N.     P. 

297.     Sir  W.  W.  Wynne    v.   Tyrwhitt,  255.     Forbes  v.  Wale,    1    Black.    532. 

4  Barn.  &  Aid.  376.  cited  by  Lord  Kenyon,  1  Esp.  N.  P.  C. 

(4)  In  Beer  v.  Ward,  on  the  trial  of  278.  4  Barn.  &  Aid.  376.  As  to  the 
an  issue  as  to  the  legitimacy  of  a  par-  custody  of  old  documents,  see  infra,  p. 
ticular   person,    a    very    old    letter,  pur-  479. 

porting    to   bear     the   signature   of    the         (6)  Gill.  Ev.   89.     Bull   N.  P.   255. 
head    of  the   family,  and    brought   from 


(c)  See  Note  903,  p.  1315.       {d)  See  Note  904,  p.  1316.      (e)  See  Note  906, 
p.  1317.     (/  )  See  Note  906,  p.  1317.     (g)  See  Note  907,  p.  1318. 


•^78  Of  the  Proof  of  Deeds,  Agreements,  ^c.  [Ch.  8. 

subscribing  witness,  other  persons  may  be  called,  ulio  were 
present  when  the  deed  was  delivered;  (/i)  or,  if  no  person  was 
present,  the  time  of  delivery  will  be  reckoned  from  the  date  of 
the  deed.  And  the  fact,  of  the  rasure  having  been  after  the 
delivery,  may  be  proved  either  by  a  subscribing  witness,  or  by 
any  other  person,  who  saw  the  rasure  made,  (i) 

Subscribing  The  rule,  that  deeds  of  thirty  years'  standin"  prove  themselve?, 

witness  alive.    .  .  .  .    . 

IS  so  well  established,  that  even  if  a  subscribing  witness  were  alive, 

and  in  a  state  to  be  produced,  it  has  been  thought  unnecessary  to 
call  Tiini  for  proving  the  execution.  (J)  Lord  Kcnyon  is  reported 
to  have  said,  (1)  that  he  remembered  a  case  before  Mr.  Justice 
Yates,  in  which,  a  deed  of  that  age  being  produced  in  evidence, 
it  appeared,  that  the  subscribing  witness  was  then  actually  in  court; 
but  the  Judge  declared,  he  would  not  break  in  upon  a  rule  of  evi- 
dence so  well  established,  by  requiring  the  subscribing  witness  to 
be  called,  and  admitted  the  deed  without  further  proof.  In  the 
case  of  Rees  v.  Mansel,  (2)  indeed,  Mr.  Baron  Perrot  held,  that, 
although  a  deed  may  be  read  in  evidence  on  account  of  its  anti- 
quity, yet,  if  on  the  other  side  it  is  shown,  that  one  of  the  witness- 
es is  alive,  he  must  be  produced,  or  the  deed  must  be  rejected;  and 
he  cited  a  case,  where  a  deed  was  produced  in  the  King's  Bench, 
and  it  appeared,  that  Sir  Joseph  Jekyll  was  the  subscribing  wit- 
ness, upon  which  the  Court  said,  they  knew  he  was  alive,  and 
that  if  he  did  not  come  to  prove  it,  the  plaintiff' must  be  nonsuited. 
It  was  then  mentioned  to  have  been  ruled  by  Mr.  Justice  Yates, 
that  for  the  sake  of  practice,  the  witness  should  not  be  allowed 
to  prove  an  old  deed,  even  if  he  attended  for  that  purpose;  but 
Mr.  B.  Perrot  retained  his  opinion;  "  An  old  deed  (he  said)  is 
admitted  only  on  a  presumption  that  the  witnesses  are  dead, 
but  when  the  contrary  is  made  to  appear,  they  must  be  called." 
If  the  rule  is  founded  on  the  mere  presum[)tion  of  the  attesting 
witness's  death,  then  it  seems  to  follow,  that,  where  this  pre- 
sumption is  contradicted  by  the  fact  ,of  his  being  still  alive,  the 
execution  of  the  deed  ought  to  be  regularly  proved,  as  in 
ordinary  cases.  But  if  courts  of  law  have  adopted  the  rule,  not 
on    the    single    presumption   of  a  fiu-t    (which    would   be  for  the 

(1)  March  v.  Colnelt,  2  Esp.  N.   P.  (2)1  Selw.  N.  P.  492. 

C.  665. 

{h)  See  Note  908,  p.  1319-      (0  Sec  Note  909,  p.  1319.      (j)  See  Note  910. 
p.  1319. 


Scc«.   1.]    Of  the  Proof  of  Deeds,  Agreements,  ^o.  479 

consideration   of  the  jury    rather   than   of  the  Court,)    but   as    a  5;"^^°^^^^;*^ °'^ 

general    maxim  of  law,   on   account   of    the    great     difficulty   of 

proving  execution  after  an  interval  of  many  years,  and  have 
therefore  fixed  a  limit,  beyond  which  a  proof  of  execution  is 
not  to  be  required,  there  appears  to  be  no  inconsistency  in  acting 
generally  upon  this  principle,  though  in  a  particular  case  the 
subscribing  witness  may  be  proved  to  be  alive,  at  the  same  time 
leaving  it  to  the  opposite  side  to  dispute  the  regularity  of  the  exe- 
cution by  calling  him  or  any  other  witness, 

The  character   and   authenticity   of  old   writings   depend    in  a  Custody  of 

•'  "-^  '.  old  documents, 

great   degree   on   the   nature  of   the   place   or  custody    in    which 

ihey  have  been  kept.  This  is  the  case  with  terriers,  ecclesias- 
tical surveys,  court-rolls,  and  other  muniments  of  manors, — 
which  ouglit  to  be  produced  each  from  its  proper  depository; 
and  if  they  have  been  regularly  preserved,  it  will  not  be  neces- 
sary, after  a  considerable  lapse  of  time,  to  prove  them  genuine. 
For  the  same  reason,  old  grants  to  abbeys  have  been  rejected  as 
evidence  of  private  right,  because  the  possession  of  them  did  not 
appear  to  be  connected  with  any  persons,  who  had  an  interest 
in  the  estate.  (I) 

In  a  laie  case,  a  grant  to  an  abbey,  contained  in  a  manuscript 
entitled  "  Secrelum  Abbatis''^  in  the  Bodleian  library  at  Oxford, 
was  rejected,  as  not  coming  from  the  proper  custody;  (2)  and 
on  the  authority  of  this  case,  Mr.  Justice  Lawrence  held,  that  an 
old  grant  to  a  priory,  brought  from  the  Cottonian  manuscripts 
in  the  British  nsuseum  could  not  be  received,  as  it  was  not  shown, 
that  the  |)ossession  of  the  grant  was  connected  with  any  person, 
who  had  an  interest  in  the  estate.  (3) 

In  the  case  of  BuUen  v.  Michel,  (4)  one  of  the  questions,  on 
the  admissibility  of  the  chartulary,  related  to  the  custody,  from 
which  that  old  document  was  produced.  It  appeared,  that  the 
chartulary  was  brought  from  the  muniment  room  of  the  Marquis 
of  Bath,  who,  although  not  the  owner  of  the  particular  farm, 
nor  of  any  property  in   the  parish  of  S.,  was  the  owner  of  other 

(1)  Lygon    V.    Strutt,  2   Anstr.    601.         (3)    Swinnerton    v.    Marq.    of   Staf- 

(2)  Michell    v.    Rabbets,    3   Taunt,     ford,  3  Taunt.  91. 
91.  (4)  2  Price,  413. 


480  Of  the  Proof  of  Deeds,  Agreements,  ^c.   [Ch.  8. 

Custody  of  old  estates   formerly   beloi)";iii2:   to   ilia  abbey,  and   coiicernins:   wbich 

estates   entries  were  to   be  found  in  tbc  same   document;  and   tbo 

character  of  the  band-writing  in  the  chartulary  was  proved  to 
be  of  the  reigns  of  the  three  first  Kdwards.  "  The  question  is," 
said  the  Lord  Chief  Baron  Gibbs,  in  delivering  the  judgment  of 
the  Court,  "  whether  this  book  appeared,  from  the  facts  attend- 
ing it,  to  have  belonged  to  the  abbey  of  Glastonbury.  We 
should  recollect,  that  such  a  book,  as  this  purports  to  be,  usually 
contains  a  description  of  all  the  estates  of  the  abbey,  and  all  the 
transactions  relating  to  them.  When  the  abbey  was  dissolved, 
those  estates  went  to  the  Crown,  and  the  Crown  afterwards 
granted  them  to  different  persons;  the  book,  when  the  abbey 
was  dissolved,  would  go  to  the  officers  of  the  Crown,  and  when 
the  Crown  portioned  out  and  made  over  the  possessions  of  the 
abbey  to  other  persons,  the  book  could  go  only  to  one  of  those 
grantees;  and  the  only  possible  way  of  connecting  it  with  the 
abbey  is,  by  showing  a  connection  between  the  possessor  and 
the  Crown,  and  by  raising  a  probability,  that  the  crown  may 
have  handed  over  the  book  to  the  present  possessor."  Now, 
such  a  connection  was  shown  in  the  present  case;  for  it  ap- 
peared, that  the  present  owner  of  the  book  is  also  the  owner  of 
certain  lands,  which  formerly  belonged  to  the  abbey,  and  on  the 
dissolution  of  the  abbey  passed  to  the  Crown,  and  from  the 
Crown  to  the  present  possessor;  and  the  probability  is,  that  the 
book  attended  the  lands  in  their  passage  from  the  Crown.  On 
this  ground,  therefore,  the  Court  were  of  opinion,  that  the  cus- 
tody was  so  accounted  for,  as  to  render  the  book  admissible  in 
evidence. 

In  the  case  of  Potts  v.  Durant,  (1)  the  Court  of  Exchequer 
determined,  that  some  ancient  writings,  which  had  been  offered 
in  evidence,  were  inadmissible,  because  they  had  not  been 
brought  from  the  proper  repository.  One  was  a  writing  pur- 
porting to  be  an  endowment  of  a  vicarage;  another  was  an  an- 
cient writing,  purporting  to  be  un  inspeximus  of  the  former, 
under  the  seal  of  the  Bishop  of  Norwich,  and  containing  a  copy 
of  the  former,  which  is  stated  to  have  been  at  that  time  in  the 
registry   of  the   diocese.     These   writings  were   produced  at  the 

(1)  3  Anstr.  789. 


Sect.  1.]     Of  the  Proof  of  Deeds,  Agreements,  ^c,  481 

trial,  bv  a  i)erson  who  had    purchased  ihem  at  a  sale,  as  part  of  a  Custody  of  old 

,,        .            .                     .               TT            1        •                                       documents, 
private  colleclion   ol    luanuscripis.     Mere    the   instruments  came 

out  of  the  custody  of  a  private  person,  peifectly  unconnected 
will)  the  matters  contained  in  them  ;  and,  for  this  reason,  were 
adjudged  to  be  inadmissible.  In  the  case  of  Lygon  v.  Strutt  (1) 
also,  the  Court  of  Exchequer  held,  that  an  ancient  writing,  pur- 
porting to  enumerate  the  possessions  of  a  monastery,  which  had 
been  brought  from  the  herald's  office,  was  inadmissible. 

The  case  of  Earl  v.  Lewis  (2)  is  another  instance  on  this  sub- 
ject. There  it  was  proved,  on  the  trial  of  an  issue  respecting 
the  boundaries  of  two  adjoining  parishes,  that  the  old  papers, 
offered  in  evidence  on  the  part  of  the  plaintiff  (the  rector  of  one 
of  the  parishes,)  had  come  into  the  possession  of  the  son  of  the 
former  rector,  upon  his  father's  death,  and  that  the  son  delivered 
them  over,  as  papers  belonging  to  the  parish,  into  the  hands  of 
the  witness,  who  produced  them  in  court,  in  the  same  state  in 
which  he  had  received  them  ;  and  this  was  held  to  be  sufficient 
evidence  of  the  authenticity  of  the  papers.  So,  in  the  case  of 
Jones  v.  Waller,  (3)  on  a  bill  for  tithes,  a  book  purporting  to  ba 
the  book  of  a  collector  of  tithes,  something  /nore  than  seventy 
years  old,  being  in  the  hands  of  the  successor  of  that  collector 
was  for  that  reason  considered  authentic. 

In  the  case  of  INianby  v.  Curtis,  (4)  a  paper,  purporting  to  be 
a  receipt  fifty  years  old,  was  produced  as  matter  of  evidence, 
to  show  that  a  man  of  the  name  of  Cartas  had,  fifty  years  before, 
paid  to  a  man  of  the  name  of  Smith  a  certain  sum  in  lieu  of  tithes, 
and  in  support  of  the  authenticity  of  this  paper,  it  was  proved 
to  have  been  delivered  to  the  witness  by  the  defendant;  but  it 
did  not  appear  where  the  defendant  got  the  paper,  nor  did  it 
appear  whether  Smith  was  dead,  or  even  who  he  was;  the  Court 
of  Exchequer  therefore  rejected  the  evidence,  on  the  ground 
that  the  paper  had  not  been  authenticated.  And  in  the  case  of 
Randolph  v.  Gordon,  (5)  where  a  book,  purporting  to  be  the 
book  of   a  former    rector,    was     produced    by    the    defendant's 

(1)  2  Anstr.  601.  proof  of  tho   collector's     hand-writing. 

(2)  4   Esp.    N.     P.    C.     1.     before     See  2  Jac.  &  Walk".  468. 

Heath  J.  (4)   I    Price,  226;   Mr.  Baron    Wood 

(3)  3   Gwill.    847.     The  evidence  is     dissenting.     2  Jac.  &  Walk.  480. 
said    to   have   been     received     without         (5)   6  Price,  312. 

Vol.  I.  61 


482  OJ  the  Proof  of  Deeds,  Agrtements,  ^c.    [Ch.  ft. 

Custody  of  old  attorney,  who  received  it   from   the  defendant,  and   the  defendant 
documents.  ,  ,  ,  c    y        r  i  •      i-  i 
was  the   grandson  oi  the   former  rector  ;    but   it  did   not   appear 

whether  he    had  found  the  book   among   his  grandfather's   papers, 

or  how  it  came  into  his  possession,  the  Lord  Ciiief  Baron  held,  that 

the  book  was  not  admissible. 

In  the  case  of  Bertie  v.  Beaumont  (1)  the  question  was  whether 
a  paper,  wliich  on  the  face  of  it  contained  ev^idence  of  money- 
payments  in  lieu  of  the  tithes  enumerated  in  it,  was  admissible, 
to  show  that  a  Dr.  Eyre,  who  was  clearly  at  the  time  rector, 
and  had  been  so  for  many  years  preceding,  and  had  received 
customary  payments  (there  being  also  negative  evidence  that 
no  payments  of  tithes  in  kind  had  been  ever  made,)  had  given 
such  receipt,  and  thereby  acknowledged  such  payments.  This 
paper  was  produced  by  the  defendant's  solicitor,  who  stated, 
that  he  received  it  from  the  defendant  for  the  purpose  of  pre 
paring  his  defence.  It  w^as  not  given  to  the  defendant,  but  to 
another  person  of  the  same  name,  and  who  of  course  occupied 
lands  in  the  parish,  for  none  but  an  occupier  could  have  acquired 
such  a  receipt.  The  Lord  Chief  Baron  Thompson  said,  "  That 
person  being  of  the  same  name  with  the  present  defendant, 
there  is  a  reasonable  inference,  that  they  were  so  connected  as 
to  make  this  the  proper  custody  ;  and  reasonable  evidence  of 
proper  custody  is  all  that  can  be  required,  and  is  sufEcient." 
It  was  objected,  also,  that  the  hand-writing  of  the  paper  had  not 
been  proved;"  "  but,"  said  the  Chief  Baron,  "  I  do  not  think 
that  any  such  proof  was  necessary  to  establish  a  document  of 
this  sort,  at  such  a  distance  of  time,  any  more  than  it  would  have 
'  been  necessary  to  prove  a  deed  of  the  same  date." 

The  rule,  respecting  the  proof  of  the  custody  in  which  docu- 
ments have  been  kept,  applies  more  particularly  to  ancient  docu- 
ments, whose  authenticity  depends,  in  some  degree,  upon  their 
custody,  and  which  must  be  shown  to  be  connected  with  the 
parly  who  produces  them.  In  conjmon  cases,  where  the  written 
instrument  itself  purports  to  belong  to  the  party  who  produces  it 
in  evidence,  no  proof  can  be  requisite  as  to  the  place  in  which 
it  has  been   kept.      On  a  question   of   settlement,   where  the  re- 

(1)  2  Price,  307. 


Sect.].]   Of  the  Proof  of  Deeds,  Agreements^  ^c.  483 

spondents   produced    a   certificate    more    than  thirty    years    old,  Castodyofoid 

purporting   to  be   granted   to  their  parish  by  the   appellant  parish, 

the  mere  production  of  it  was  held  to  be  sufficient,  and  the  re- 
spondents were  not  obliged  to  show  that  the  ceriificate  had 
been  kept  in  the  parish  chest;  (1)  and  it  would  be  sufficient,  if 
the  certificate  were  to  be  produced  by  a  rated  inhabitant  of  the 
parish.  {2){k)  So  in  an  action  for  a  false  return  to  a  mandamus  a 
corporator  may  produce  the  muniments  of  the  corporation.  (3) 
It  has  been  before  mentioned,  that  if  a  witness  is  called  merely 
to  produce  ait  instrument,  he  need  not  be  sworn  for  that  pur- 
pose. (4) 

A   deed   may   be   dven   in   evidence,   under   a    rule   of   court,  2-  Deed  pro- 

■^  ...  duced  Dy  rul* 

without    proof   of  execution;    for  the  consent  is  conclusive,  and  of  court, 
the  jury  are  to  try   only  such  facts  as   are  in  issue  between  the 
parlies.  (5) 

When  a   deed,  or   written   agreement,  comes   out  of  the    pos-  "•  Deed  pro- 
i.    .  .  ,  ...  educed  by  tha 

session   ol  the   opposite   party,  who  produces  it   m   pursuance  oi  other  party. 

a  notice,  and  who  derives  a  beneficial  interest  under  it,  the  exe- 
cution need  not  be  proved;  (6)  nor  will  proof  of  the  execution 
of  a  deed  be  necessery,  where  the  opposite  party  who  produces 
the  deed  is  a  public  officer,  who,  in  the  discharge  of  his  of- 
ficial duties,  was  obliged  to  prepare  such  deed,  and  have  it  duly 
executed.  (7)(Z) 

Fifthly,  of  the  proof  of  hand- writing  in  general. 

The  simplest  and   most    obvious   proof  of  hand-writing   is  the  Proof  of 
testimony  of  a  witness,  who   saw  the   paper  or   signature  actually  """^-"'"I'ng- 
written.     But    a  great  variety   of   cases   must  continually  occur, 
where  such   a    direct  kind  of  evidence  cannot  possibly   be    pro- 
cured.     The    writing  may  be   secret,  as    must   constantly  happen 

(1)  R.  V  Ryton,  5  T.  R.  259.  (5)   1    Siderf.    269.     Gilb     Ev.    91. 

(2)  R.   V.    Netherthong,  2    Maule   &.     Bull.  N.  P.  256. 

Selvv.  337.     This   was    Ijufore    the  late         (6)   See    Pearco    v.  Hooper,  and    Orr 

act    of    parliament,    which    made    rated  v.  Morice,  ante,  p.  449,  450.  ^ 

inhabitants     competent       witnesses     on         (7)   Scott  v.   Waithman,  3  Stark.  N. 

the  trial  of  an  appeal.  P.    C    168.     Barnes  v.    Lucas,  Ry.    & 

(3)  2  Maule  &  Selw.  333.  Mo.  N.  P.  C.  264.  S.  P. 

(4)  Seo  ante,  p.  274. 


{k)  See  Note  911,  p.  1319.     (I)  See  Note  912,  p.  1320. 


484  Of  the  Proof  of  Deeds,  Agreements,  ^c.   [Ch.    8. 

Proof  of  in  cases   of  a    fraudulent    or  criiiiinal   nature;  or,    if  any   person 

hand-writing.  t        i  •        V    ^    • 

— was   present,  he  may  be  dead    or  unknown.     Jn   this   deficiency 

of  positive   proof,   the    best  evidence,    which    the  nature   of   the 

case   admits,  is  the  information   of  witnesses  acquainted   with  the 

supposed  writer,  who,    from   seeing   him  write,  have   acquired  a 

1.  Proof  by     knowledge  of  his  hand-writing:  for  in  every  person's  manner  of 

witncssGS*  who 

have  seen  the   Writing  there  is  a  certain  distinct    prevailing  character,  which   may 

party  write.  ^^  easily  discovered  by  observation,  and,  when  once  known,  may 
be  afterwards  applied  as  a  standard  to  try  any  other  specimens 
of  writing,  whose  genuineness  is  disputed.  A  witness  may  there- 
fore be  asked,  w^iether  he  has  seen  a  particular  person  write, 
and  afterwards,  whether  he  believes  the  paper  in  dispute  to  be  his 
hand-writing.  This  course  of  examination  evidently  involves 
two  questions;  first,  whether  the  supposed  writer  is  the  person  of 
whom  the  witness  speaks;  and,  secondly,  if  he  is  the  person,  whe- 
ther he  wrote  the  paper  in  dispute.  The  first  is  a  question  of 
identity;  the  second  a  question  of  judgment,  or  a  comparison, 
'  in  the  mind  of  the  v.'itness,  between  the  general  standard  and  the 
writing  produced. 

This  kind  of  evidence,  like  all  probable  evidence,  admits  of 
every  possible  degree  from  the  lowest  presumption  to  the  highest 
moral  certainty.  It  may  be  so  weak,  as  to  be  utterly  unsafe  to 
act  upon;  or  so  strong,  as  in  the  mind  of  any  reasonable  man 
to  produce  conviction.  The  witness  may  have  been  in  the  con- 
stant habit  of  seeing  the  person  write,  day  after  day,  for  years 
together,  on  common  transactions,  and  in  the  course  of  impor- 
tant business;  and  what  better  means  can  he  have  of  gaining 
the  most  accurate  knowledge  of  his  manner  of  writing."^  On  the 
other  hand,  it  may  be  found,  perhaps  on  enquiry,  that  he  has 
seen  him  write  only  a  few  words,  many  years  ago,  or  only  once; 
or  the  specimens,  which  he  saw,  were  perhaps,  slight  and  im- 
perfect, made  in  a  hurry,  at  distant  intervals,  or,  from  some 
other  cause,  were  not  the  fair  average  specimens  of  his  general 
style  of  writing,  but  deviations  from  the  common  form;  in 
which  cases,  the  impression  on  the  mind  of  the  witness  would' 
*  be  faint    and    inaccurate.       But   whatever   degree  of    weight  his 

testimony   may  deserve,  which   is   a  question   exclusively  for   the 


Sect.   1.]   Of  the  Proof  of  Deeds. ^   Agreements,  ^-c.  485 

jury  it  is  an  established  rule,  that,  if  he  has  seen  ilia  person  write,  J'^o/of.  . 

**      •'  '  '    _  '  h:ind-wriliiig. 

he  will  be  conipeteiit  to  speak  to  his  hand-vvriiin^.(l)(?rt)  

On  the  trial  of  Algernon  Sydney,  as  appears  from  the  primed  Sydnej'scaBe. 
report  of  that  case,  (2)  three  witnesses  were  called  to  prove  a  paper 
to  be  his  hand-writing:  the  first  said,  he  had  seen  the  prisoner 
write  the  endorsement  upon  several  bills  of  exchange,  and  that  he 
believed  the  paper  to  have  been  written  by  him;  this  evidence  was 
objected  to  as  a  comparison  of  hand-writing,  but  admitted:  the 
second  witness  said,  he  had  not  seen  the  prisoner  write  more  tlian 
once,  but  that  ho  had  seen  his  endorsement  upon  bills,  and  that  the 
paper  was  very  like  it:  the  third  witness  said,  he  had  seen  several 
notes,  which  had  come  to  him  with  the  endorsement  of  the  pris- 
oner's name,  and  that  he  had  paid  them,  and  had  never  been 
called  to  account  for  mis-payment:  the  whole  of  this  evidence 
was  received.  The  prisoner,  in  his  defence,  still  insisted,  that 
nothing  but  the  comparison  of  hand- writing  had  been  offered,  as 
proof  against  him;  and  the  act  of  parliament,  which  reversed  his 
attainder,  states  the  admission  of  this  evidence  as  one  of  the 
grounds  of  the  illegality  of  his  conviction.  That  act  recites, 
among  other  particulars,  that  "  there  had  not  been  sufficient  legal 
evidence  of  any  treasons  committed  by  him,  there  being  produced 
a  paper  found  in  his  closet,  supposed  to  be  his  hand-writing, 
which  was  not  proved  by  any  one  witness  to  have  been  written 
by  him;  but  the  jury  was  directed  to  believe  it  by  comparing  it  xoith 
other  writings  of  his.  (3)  However  if  the  printed  report  of  the  trial 
is  correct,  something  more  than  the  mere  comparison  of  hand- 
writing was  laid  before  the  jury;  for,  according  to  that  report, 
the  first  witness  had  seen  the  prisoner  write  his  name  several 
times.  And  though  it  may  be  objected  to  the  testimony  of  the 
two  last  witnesses,  that  the  endorsements,  mentioned  by  them 
were  not  sufficiently  proved  to  have  been    written  by  the  prisoner, 

(1)  Lord   Preston's   case,  4  St.   Tr.  1  Esp.  N.  P.    C.    14.    Garrels  v.    Alex- 

446,    447.      Francia's  case,    6   St.  Tr.  ander,  4  Esp.  37. 

70.     Layer's  case,  6    St.    Tr.  275.     R.         (2)  3  St.   Tr.    302.      8    Howell   St. 

V.    Dr.    Hensey,    1    Burr.    644.     De  la  Tr.  467,  S.  C. 

Motte'a  case,   21  Howell   St.    Tr.    810.         (3)    Cited    in     Layer's   case,    6    St. 

Eaglelon   and    Coventry    v.     Kingston,  Tr.  279. 
8  Vea.  43S,  474.     Stranger   v.   Searle, 


(ni)  See  Note  913,  p.  1321 


486  Of  the  Proof  oj  Deeds,  Agreements^  ^c.     [Ch.  8. 

Proof  of  ihat  objeciion  will  not  apply  to  the  other  witness,  whose  evidence 

band-writing.  ,    ,  i      •     -i  i  rm  i  •    j      r       •  i  j 

1_  was  certainly  admissible.      1  he    same    kind  ol  evidence    was    ad- 

niiticd  in  Lord  Preston's  case  within  a  year  after  the  reversal  of 
Sydney's  attainder,  and  has  bctn  sii  c  ;  received  in  many  cases  of 
great  authoriiy.  (1) 

2.  Proof  by  Another    method    of  acquiring  a   knowledge    of    hand-writing 

the  party's  cor-  .      ,  -  .  ,  ir  •.  i 

respondents,      's  by    means  of  a   written    correspondence.       II  a    witness    has 

received  letters  on  subjects  of  business,  which  can  be  proved  to 
have  been  written  by  a  particular  person,  or  letters  of  such  a 
nature  as  makes  it  probable  that  they  were  written  by  the  hand 
from  which  they  profess  to  come,  he  may  be  admitted  to  speak 
to  that  person's  hand-writing.  The  same  questions  occur  here, 
as  have  been  before  mentioned  in  the  case  where  a  witness 
speaks  from  having  seen  the  person  write;  and  in  addition  to 
these,  one  other  question  arises  concerning  the  identity  of  the 
person  who  wrote  the  letters;  and  the  admissibility  of  the  evidence 
must  depend  upon  this,  whether  there  is  good  reason  to  believe 
that  the  specimens  from  which  the  witness  has  derived  his 
knowledge  were  written  by  the  supposed  writer  of  the  paper 
in  question,  (n)  If  this  point  is  c'early  proved,  the  witness  who 
has  received  the  letters  will  freqiiently  be  able  to  give  more 
satisfactory  evidence,  than  one  who  has  seen  the  person  in  the 
act  of  writing:  for  the  latter  may  have  seen  him  write  but 
seldom,  or  on  occasions  which  were  not  likely  to  excite  attention; 
while  the  other  may  have  had  frequent  opportunities  of  re-perusing 
the  letters,  and  the  letters  themselves,  having  been  written  on 
subjects  of  business,  will  probably  have  more  consistency,  and  ex- 
hibit a  fairer  specimen  of  the  general  character  of  hand-'.vriting. 

The  first  reported  case,  in  which  the  admissibility  of  this  kind 
of  evidence  appears  to  have  been  decided,  is  the  case  of  Lord 
Ferrers  v.  Shirley,  which  is  thus  stated  in  Fitzgibbon's  Re- 
ports: (2) — *'  Upon  a  feigned  issue  out  of  Chancery,  directed  to 
be  tried   at  bar,   whether   a  deed,   pretended   to   have  been  exe- 

(1)  See  ante,  p.    485,  n.  1.    And  see         (2)  P.  195. 
the  case  of  De    La   Motte,    21    Howell 
St.  Tr.  p.  810. 


(n)  See  Note  914,  p.  1324. 


Sect.  1.]     Of  the  Proof  of  Deeds,  Agreements,  i-e*  487 

cuted  by  the  Earl    Ferrers  in  ihe  year  16S3,  was  his  deed  or  not,  Proof  of  hand- 
several  witnesses  were  called   to  swear  to  the   hand-writing  of  the  ____!!! 

subscribing  witnesses  then  dead,  and  amongst  others  one  J.  J., 
who  would  have  sworn  to  the  name  of  J.  Crtiington,  whose 
name  was  on  the  deed  as  a  witness,  because  he  had  seen  several 
letters  written  by  Cottington:  thereupon  he  was  asked,  whether 
he  had  ever  seen  Cottington  write?  to  which  he  answered,  that 
he  never  had,  nor  ever  saw  the  person  that  wrote  the  said 
letters,  but  that  his  master  (to  vvliom  the  letters  were  written  for 
the  rent  of  a  part  of  the  estate  of  the  late  Earl  Ferrers,  which 
his  said  master  held,)  informed  him,  they  w^ere  the  letters  of 
Cottington,  the  Lord  Ferrer's  steward,  who  was  the  person 
pretended  to  have  attested  the  deed  in  question.  It  was  here- 
upon objected  to  his  testimor)y,  because  he  could  not  say  with 
any  certainty  whether  or  not  the  writer  of  the  letters  was  the 
same  persons  that  attested  the  deed;  for  Cottington,  who  was 
supposed  to  write  the  letters,  might  have  got  some  other  person 
to  write  those  very  letters  for  him;  rnd  the  counsel  insisted,  that 
in  all  cases  where  a  witness  would  swear  to  hand-wi'iting,  he 
must  be  able  to  say,  that  he  saw  such  a  person  write.  The 
Court  rejected  the  witness,  because  he  could  not  ascertain  the 
identity  of  the  person.  But  Lord  Raymond  said,  "  It  was  not 
necessary  in  all  case3  that  a  witness  should  have  seen  the 
person  write,  to  uhose  hand  he  swears;  for  where  there  has 
been  a  fixed  correspondence  by  letters,  and  it  can  be  made  out, 
that  tliC  party  writing  such  letters  is  the  same  man  that  attested 
a  deed,  that  will  entitle  a  witness  to  swear  to  that  person's 
hand,  though  he  never  saw  him  write."  Page  J.  said,  "  If  a 
subscribing  witness  to  a  deed  lives  in  the  West  Indies,  whose 
hand-writing  is  to  be  proved  in  England,  a  witness  here  may 
swear  to  his  hand,  by  having  seen  the  letters  of  such  person, 
written  by  him  to  his  correspondent  in  England,  because,  under 
the  special  circumstances  of  that  case,  there  is  no  other  way,  or 
at  least  the  difficulty  will  be  great,  to  prove  the  hand-writing  of 
such  subscribing  witness."  But  Lord  Raymond  differed,  and 
said,  "  that  these  special  circumstances  could  not  vary  the 
reason  of  the  thing."  It  was  further  objected  to  the  same 
witness,  that  he  should  produce  the  letters,  that  the  Court  and 
the  jury  might  be  able  to  judge  of  the  resemblance  between  the 
hand-writing  of  the  letters  and  that  on  the   deed;  but  this  was 


488  Of  the  Proof  of  Deeds,  Agreements,   ^e.    [Ch.   R. 

rroofoflnnd- over-ruled  by  the  Court,  "  because  the  witness  niig.ht  well  have 
Z acquired  a  knowledge  of  the  character  of  Cottington's  hand- 
writing, by  having  seen  several  letters  written  by  him."  The  rule 
to  be  deduced  fiom  this  case  is,  that  a  witness  may  be  admitted  to 
speak  to  a  person's  hand-writing,  if  he  has  seen  letters,  wliich 
can  be  proved  to  have  been  written  by  him;  but  that  this  an- 
tecedent proof  of  tlie  identity  of  the  person  is  indispensably 
necessary;  and  further,  that  hearsay  evidence  of  identity  is 
totally  inadmissible.  The  case,  reported  to  have  been  put  by 
Page  J.,  is  not  very  clearly  stated.  If  it  is  understood  to  mean, 
that,  where  a  subscribing  witness  resides  abroad,  slighter  proof 
of  his  signature  may  be  given  than  is  necessary  in  other  cases, 
it  certainly  cannot  be  supported;  but  if  the  meaning  is,  that  his 
signature  may  be  proved  in  the  same  manner  as  if  he  were  dead, 
by  a  witness  who  has  seen  letters  proved  to  be  of  his  writing, 
the  case  is  warranted  by  many  later  authorities,  which  have 
been  already  mentioned.  And  with  regard  to  the  last  objection, 
namely,  that  the  witness  ought  to  produce  the  letters,  that  the 
jury  might  judge  of  the  resemblance,  it  appears  to  have  been 
made  as  a  preliminary  objection  to  the  admissibility  of  his 
evidence,  and  was  therefore  properly  over-ruled.  But  after 
the  witness  has  been  regularly  admitted  to  give  his  evidence, 
it  seems  reasonable  that  the  opposite  party  should  be  allowed 
not  only  to  cross-examine  as  to  the  number  and  appearance 
of  the  writings,  which  the  witness  professes  to-  have  seen,  but 
also  to  call  upon  him  to  produce  the  writings  in  court,  that  the 
jury  may  judge  of  the  means  which  the  v.itnsss  had  of  forming  his 
opinion. 

Another  authority,  in  support  of  the  rule  laid  down  in  Lord 
Ferrars  v.  Shirley,  is  Layers's  case,  (1)  on  a  trial  for  high  treason, 
where  the  witness  (who  had  received  letters  from  the  prisoner 
on  business  five  years  before,  which  he  answered,  and  transacted 
the  business  according  to  the  directions  in  the  letters,  and  had 
been  paid  for  it,)  was  allowed  to  speak  to  the  hand-writing  of  a 
treasonable  paper  charged  upon  the  prisoner;  and,  though  the 
witness   in  this  case  had   seen    the  prisoner   write   some    years 

(1)  6  St.  Tr.  275.  Seo  also  Gold  172.  R.  v.  Mr.  Justice  Johnson,  29 
V.  Jones,  1  Black.  Rep.  384,  S.  P.  Howell,  St.  Tr.  441.  Harrington  v. 
Wade  V.   Broughton,  3  Ves.   &   Beam.     Fry,  Ry.  &  Mo.  N.  P.  C.  90. 


Sect.  I.]     Of  the  Proof  of  Deeds,  Agreements^  ^c.  489 

before  the  receipt  of  the  letters,  yet,  independent  of  that  circum-  Proof  of 

1  •  -1  •    J      J  I  1     •     M  1  T/-    1        1      1  hand-wnling. 

Stance,   his   evidence  was  judged  to  be  admissible.     II    ho  had 


formed  his  judgment  of  the  prisoner's  hand-writing  from  these 
letters  alone,  *'  if  the  case  had  gone  no  further,"  said  the  Chief 
Justice,  "nobody  could  have  doubted  but  that,  according  to  the 
usual  course  and  rules  of  evidence,  the  paper  ought  to  be  read." 
With  respect  to  the  interval  of  time  that  has  elapsed  since  the 
witness  saw  the  prisoner  write,  or  received  letters  from  him,  this  is 
a  circumstance  not  to  exclude  him  from  giving  evidence,  but  to  be 
left,  with  all  the  other  circumstances  of  the  case,  to  the  considera- 
tion of  the  jury. 

This  rule  of  evidence  appears  not  to  have  been  settled  at  the  Seven  bishops' 
time  of  the  memorable  trial  of  the  seven  bishops,  who  were 
tried  for  a  libel  in  the  fourth  year  of  James  II.  In  the  course 
of  that  trial,  a  witness,  called  to  prove  the  signature  of  one  of 
the  bishops,  said  he  had  received  letters  from  him  on  business, 
and  that  he  had  done  what  the  letters  required,  and  that  he  be- 
lieved the  signature  in  question  to  be  the  bishop's  hand-writing, 
but  could  not  swear  that  those  letters  were  written  by  him.  (1) 
This  was  the  strongest  evidence  in  the  case,  excepting  the  proof 
of  the  archbishop's  signature,  which  was  proved  by  one  who 
had  seen  him  write.  But  Mr.  Justice  Powell  thought  it  an  ob- 
jection to  the  evidence  before  mentioned,  that  the  witness  had 
never  seen  the  bishop  write,  and  that  the  receipt  of  the  letters 
was  not  sufficient,  unless  he  could  also  swear  who  had  written 
ihem.  A  long  and  desultory  argument  ensued  on  the  admissi- 
bility of  the  paper  in  question,  the  counsel  for  the  prosecution 
insisting  that  the  signatures  of  the  bishops  had  been  proved, 
and  the  counsel  on  the  other  side  that  the  proof  was  insufficient. 
Mr.  Justice  Powell  said,  (2)  "  he  thought  the  paper  had  not 
been  sufficiently  proved  to  be  subscribed  by  the  bishops.  It  is 
too  slender  a  proof  for  such  a  case.  I  grant  you,"  he  added, 
"  in  civil  actions  a  slender  proof  is  sufficient  to  make  out  a 
man's  hand,  as  by  a  letter  to  a  tradesman  or  a  correspondent, 
or  the  like;  but  in  criminal  causes,  such  as  this,  if  such  a  proof 
is  allowed,  where  is  the  safety  of  your  life,  or  any  man's  life 
here.'"'     The  judges  were  equally  divided   in  opinion,  and   the 

(1)  4St.  Tr.  338.  (2)  P.  245. 

Vol.   I.  62 


490  Of  the  Proof  of  Deeds,  Agreements,  ^c.  [Ch,  8. 

Proof  of  paper  was  not  allowed  to  be  read.     Thus  it   appears,   that  at  that 

hand-writing.       •  i  ,        /•         •  t  i  •    i      i         i  •  i 

time  \he  rule  ol  evidence  which  lias  been  mentioned  was  not  ad- 
mitted in  criminal  cases,  though  even  then  it  was  acknowledged 
to  be  reasonable  in  cases  of  a  civil  nature.  But  this  distinction  is 
no  longer  made.  If  the  rule  is  true  in  the  one  case,  it  must  be 
equally  true  in  the  other  ;  for  the  rules  of  evidence,  which  are 
the  laws  of  truth,  must  be  uniform  and  universal. 

Comparison  of  In  the  cases  which  have  been  mentioned,  the  proof  of  hand- 
■  writing  is  founded  on  a  knowledge  of  the  general  character. 
The  witness  is  supposed  to  have  formed  a  standard  in  his  mind, 
and  with  that  standard  to  compare  the  writing  in  question.  But  no 
other  kind  of  comparison  will  be  allowed,  (o)  It  is  an  established 
rule  of  evidence,  that  hand-writing  cannot  be  proved  by  com- 
paring the  paper  in  dispute  with  any  other  papers  acknowledged 
to  be  genuine.  The  reason  usually  assigned  is,  that  unless  a 
jury  can  read,  they  would  be  unable  to  institute  a  comparison, 
or  judge  of  the  supposed  resemblance;  (1)  a  reason,  however, 
which  appears  to  be  too  narrow  for  a  rule  of  such  general 
application.  Another  reason  for  rejecting  such  a  comparison 
seems  to  be,  that  the  writings,  intended  as  specimens,  to  be 
compared  with  the  disputed  paper,  would  be  brought  together 
by  a  party  to  the  suit,  who  is  interested  to  select  such  writings 
only  as  may  best  serve  his  purpose,  and  they  are  not  likely 
therefore  to  exhibit  a  fair  specimen  of  the  general  character  of 
hand-writing.  It  has  been  thougbt  by  some  an  inconsistency  in 
the  rules  of  evidence,  to  allow  a  witness  to  compare  in  his  mind 
the  disputed  paper  with  the  impression  which  a  short  and 
transient  view  of  writings  may  have  made  upon  his  memory  ; 
yet  on  the  other  hand,  not  to  permit  the  jury  to  compare  it  with 
writings,  proved  to  be  authentic,  present  in  court,  and  open  for 
inspection.  The  only  answer  which  occurs  to  this  objection  is 
that  before  suggested,  namely,  that  the  writings,  which  are  pro- 
duced as  specimens,  having  been  selected  by  an  interested  party 
to  serve  a  present  purpose,  are  open  to  suspicion,  and  liable  to  the 
imputation  of  contrivance. 

(I)  Macferson  v.  Thoytes,  Peake,  N.    P.  C.    20.     Brookbard    v.    VVoodley,    ib. 
n.  (6.) 

(o)  See  Note  915,  p.  1326. 


Sect.    1.]    Of  thti  Proof  of  Deeds,  Agreements,  ^c.  491 

A  witness   who   has   seen   a   person    write,  and  yet   retains  no  P™"'"  ^^ 

...  .  .  r     1       1         I         •  •  I         11  1  •        nand-wnting. 

distinct  impression  oi  the  hand-wriiing,  may  be  allowed   to  revive 


his  memory  by  looking  at  the  paper  which  he  saw  written,  and  fo  assist  wt'" 
which  he  has  kept  in  his  possession,  and  may  then  declare  his  ne^^' 
opinion  as  to  the  genuineness  of  the  paper  in  question.  (l)(p) 
If  a  witness,  after  seeing  a  person  write  only  once,  is  allowed  to 
give  his  opinion  on  the  similarity  of  hand-writing,  from  the  im- 
pression which  that  solitaiy  specimen  of  writing  has  left  upon 
his  mind,  though  he  may  not  have  seen  the  specimen  since  it 
was  first  written;  a  fortiori  is  the  witness  competent,  if  he  has 
kept  the  impression  fresh  and  strong  by  a  frequent  inspection  of 
the  writing,  if  he  has  had  an  opportunity  of  restoring  the  first 
impression  even  by  a  single  perusal.  A  perusal  of  this  writing, 
even  at  the  moment  when  the  witness  is  called  upon  lo  give  his 
opinion  on  some  other  paper,  may  serve  to  strengthen  the  memory, 
and  for  that  purpose  seenis  to  be  strictly  regular.  There  would 
be  great  danger  in  allowing  papers,  wliich  the  witness  has  not 
seen  written,  to  be  put  into  his  hand,  under  pretence  of  leviving 
his  recollection:  the  danger,  is,  that  such  a  contrivance  would 
not  restore  the  impression  formerly  produced,  but  rather  serve  lo 
create  a  new  and  different  impression;  to  permit  an  inspection 
of  such  papers,  with  a  view  to  assist  the  witness  in  judging  of 
some  other  disputed  paper,  would  in  effect  be  admittin:^  a  compar- 
ison of  hand-writing:  but  in  the  case  proposed,  where  the  witness 
looks  at  the  identical  paper  which  he  saw  written,  and  from  which 
his  mind  received  the  only  impression  it  ever  had  of  the  writer's 
style,  there  is  no  danger  of  contrivance  or  collusion;  and  the 
mind  must  surely  be  better  able  to  form  an  opinion,  when  the 
memory  has  thus  been  strengthened  and  refreshed,  than  when  it 
trusts  only  to  the  first  fleeting  impression,  which,  from  want  of 
retouching,  would  become  gradually  fainter  and  more  indistinct. 

When  the   antiquity  of  a    writing,   purporting  to   bear  a    per-  Comparison  in 

,        .         ,  ...  -lie  •  .        case  of  ancient 

son  s   Signature,  makes    it   im[)ossibIe  lor   a    witness  to  swear  that  writings. 
he   has  ever  seen  the     party    write,   it   has    been   held   suflicient, 
that  the   witness   should   have   become  acquainted    with   his  man- 
ner  of    signing    his   name,    by   inspecting   other  ancient   writings 

(1)  Burr  V.  Harper,  Holt,  N.   P.   C.     ell's  St.    Tr.    196,  in    the   examination 
420.     And  see  Layer's   case,  16   Hew-     of  the  witness  Doyley. 


(p)  See  Note  916,  p.  1331 


492  OJ  the  Proof  oj  Deeds,  Agreementa,  ^c.     [Ch.  8. 

Proof  of  which   bear  ihe  same  signature,  nrovifled  those   ancient   writings 

hand -writing.  ,         ,  ,     ,  •  i         •      j 

have  been  treated  and  regularly  preserved  as  authentic  documents. 

A  witness,  therefore,  may  be  regularly  asked,  whether  he  has 
inspected  such  ancient  writings,  in  order  to  acquire  a  knowledge  of 
the  character  of  the  hand-writing;  and  then,  whether  he  believes 
the  writing  in  question  to  be  of  the  same  character.  (I)(9)  It 
would  be  regular,  also,  to  lay  such  ancient  writings  before  a  wit- 
ness at  the  time  of  the  trial,  in  the  first  instance,  for  the  purpose  of 
his  inspection;  and,  after  a  careful  inspection  by  the  witness,  to 
enquire  as  to  his  judgment  and  belief.  (2)  In  a  case  tried  before 
Mr.  Justice  Le  Blanc,  (3)  a  signature  in  an  entry,  purporting  to 
have  been  made  by  a  person  long  since  deceased,  was  allowed  to 
be  compared  with  another  signature  of  the  same  person  in  a  deed 
of  settlement;  and  this  evidence  by  comparison  was  admitted,  on 
the  ground,  that  at  such  a  distance  of  time  no  better  evidence  of 
the  fact  could  be  obtained.  In  another  case,  a  presentment  of  a 
jury  in  a  court  baron  being  offered  in  evidence,  the  signature  of  the 
foreman  on  the  presentment  was  proved  by  means  of  comparing  it 
with  the  signature  on  his  will.  (4)  If  evidence  by  comparison  is 
properly  admitted  in  such  cases,  to  prove  the  genuineness  of  a  sig- 
nature, the  same  kiud  of  evidence  must  also  be  admissible,  to  prove 
that  the  signature  is  not  genuine. 

Evidence  39  to       When   the  genuineness  of  a  signature   is  questioned,  the   most 

fiand-wrSng°^  ^^^^s^^^^°''y  ('f  "O^   technically   speaking,  the  best)   evidence,   to 

disprove  the  writing   and   prove   it  forged,  is  the  testimony  of  the 

(1)  Bull.  N.  P.  [236,]  citing  a  case  v.  Ward,  (supra,  n.  1,)  to  have  been 
determined  by  Lord  Hardwicl<e  in  so  ruled  by  Lawrence  J.  in  a  case  on 
Chanc.  Dec.  1746.  7  East,  282,  n.  the  Oxford  circuit.  See  also  Ry.  & 
(a.)    14   East,  328.     This  kind    of  cvi-  Mo.  N.  P.  C.  143,  S.  P. 

dence  has  been   received    in  many  other         (3)  Brune  v.    Rawlins,  7  East,  282: 

cases.       Several    instances    occurred    in  the    supposed    writer    had    been    dead 

the  case    of  Beer    v.  Ward,  on   the  trial  about    60    years.      The    same   evidence 

of  an   issue   out  of  Chancery,  in  C.    P.  had    been    received,  on    a    former  trial 

Eitt.    after    Mich.  T.    1S21,  before    Dal-  of  the  same  cause. 

las,  C.  J.,  and   on  a  second   trial,  before         (4)  Morewood   v.   Wood,     14   East, 

Lord    Tenterden,    in    K.   B.    sitt.    after  328      In  this,  and  the  former  instance, 

Tr.  T.  1823.     Holroyd  J.  also  admitted  it   is  not  precisely  stated,  in   the  report, 

such  evidence  in   the  case  of  Doe  deni.  whether   the    comparison  was  made  by 

Maddock    v.    Lyne,    Leic.   Sum.    Ass  a   v^itness  or  by    the  jury;   but,    upon 

1822;    see   also   Taylor    v.     Cooke,   8  the    whole,  it   seems   the  most  satisfac- 

Pricc,  652;  and    several   other  cases  of  tory    mode    of    proof,    that    a    witness 

a  similar  description  might  be  cited.  should    inspect   the   writings,  and    after- 

(2)  Said   by  Lord  Tenterden  in  Beer  wards  give  the   result   of  his  judgment. 


iq)  See  Note  917,  p.  1331. 


Sect.  1.]  Of  ike  Proof  of  Deeds,  Agreemenis,  ^c.  41)3 

supposed   writer  himself  provided   lie   is  not  an  iiiconipeient   wit-  Proof  of 

....  ...^  .  ~  hand-writing. 

ness.  (1)      Next   to   his   evidence,  is   the   iniormation   oi   persons 

who  have  seen  him  write,  or  been  in  the  habit  of  correspondence 
with  him.  Inspectors  of  franks,  clerks  of  the  post-office,  and 
other  persons  of  skill  practised  in  examining  hand-writing  and 
in  detecting  forgeries,  have  been,  in  some  cases,  allowed  to  give 
their  opinion,  from  their  general  knowledge  of  hand-writing, 
whether  a  particular  specimen  of  writing  is  in  a  genuine  or  imitat- 
ed character.  (2)  But  the  admissibility  of  such  evidence  was  late- 
ly considered  in  the  case  of  Gurney  v.  Langlands.  (3)  An  issue 
was  in  that  case  directed  by  the  Court  of  King's  Bench,  to  try 
whether  a  signature  on  a  warrant  of  attorney  had  been  forged.  On 
the  trial  of  the  issue,  an  inspector  of  franks  at  the  post-office,  who 
was  entirely  unacquainted  with  the  hand-writing  of  the  supposed 
writer,  was  asked,  whether,  from  his  general  knowledge  of  hand- 
writing, he  believed  the  signature  to  be  genuine  or  imitated. 
The  question  was  objected  to,  and  the  objection  allowed  by  the 
Judge,  Mr.  Baron  Wood.  A  motion  was  in  consequence  made 
for  a  new  trial,  on  the  ground  of  the  rejection  of  this  evidence. 
Some  of  the  Judges  of  the  Court  of  King's  Bench,  on  that  occa- 
sion, expressed  doubts  as  to  the  admissibility  of  such  evidence  in 
general;  all  of  them  considered  it,  if  admissible,  not  entitled  to 
any  weight.  The  reasons,  given  by  Mr.  Baron  Wood,  for  reject- 
ing the  evidence,  are  stated  in  his  report  of  the  case  to  the  Court 
of  King's  Bench,  and  appear  lo  be  decisive  on  this  question. 
*'  When  a  witness  (he  says)  has  seen  another  person  write,  or 
by  receiving  letters  from  him  has  become  acquainted  with  his 
hand-writing,  he  has  the  means  of  forming  an  opinion  as  to  its 
'general  character.  But  where,  as  in  this  case,  the  vvitnes.s  ac- 
knowledges, that  he  had  not  any  previous  acquaintance  what- 
ever with  the  hand-writing  of  the  person,  he  could  not  have  any 
foundation  for  his  opinion  or  belief,  whether  the  signature  in 
question  was  genuine,  or  only  an  imitation;  for  he  had  never 
seen  or  known  that,  on  which  it  was  supposed  to  be  an  imi- 
tation. There  is  not  any  universal  fixed  standard,  by  which 
hand-writing  can   be  ascertained   to    be  counterfeit,  upon    mere 


(1)  Vide  supra,  p.  225.  Macknill,    Sayer,      132.       Stringer    v. 

(2")  Goodtitle  dem.  Revett  v.  Bra-  Searle,  1  Esp.  N.  P.  C.  14. 
bam,  4  T.  R.  497.  R.  v.  Cator,  4  Esp.  (3)  5  Barn.  &  Aid.  330. 
N.  P.  C.  117,  145.     See  also  Kemp  v. 


494 


Of  the  Proof  of  IVills. 


[Ch.  8. 


inspection,   without    some    previous     kiiowledge    of    tlio    genuine 
character."  (r) 

Sect.    TI. 


Witness  to 
will. 


Of  the   Proof  of  Wills. 

The  statute  of  frauds  enacts,  (1)  that  all  devises  of  lands  or 
tenements,  devisable  by  that  statute,  or  by  the  statute  of  wills, (.2)* 
or  by  force  of  any  particular  custom,  shall  bo  in  writing,  and 
signed  by  the  parly  so  devising  the  same,  or  by  some  other  per- 
son in  his  presence  and  by  his  express  direction,  and  attested 
and  subscribed  {s)  in  the  presence  of  the  said  devisor  by  three  or 
four  credible  witnesses,  or  else  they  shall  be  utterly  void  and  of  no 
effect.  (0 

The  credibility  or  competency  of  the  witnesses  (for  the  term 
*'  credible"  is  here  to  be  construed  as  synonymous  with  "  com- 
petent") (w)  must  be  considered  with  reference  to  the  lime  of  at- 
testation; so  that,  if  one  of  three  attesting  witnesses  would  have 
been  incompetent  to  give  evidence  at  the  time  of  his  subscrib- 
ing, as  from  want  of  reason,  or  from  conviction  of  some  in- 
famous offence,  (3)  the  will  is  not  duly  executed  within  the  sta- 
tute of  frauds,  {v)  Upon  this  principle  it  was  determined,  soon 
after    the    passing    of    the    statute,     that    a    devisje    could  not 

(1)  St.  29  C.  2.  c.  3.  8.  5.  (3)  Pendock  v.    Mackinder,    Willes's 

(2)  St.    32  II.  8.  c.    1.  explained    by     Rnp.  665. 
Bt.  34  H.  8.  C.5. 


Copyhold.  *  The    statutes    of  the   32d    and    ollh  of  Henry  VIII.    gave    the  power    of  de- 

vising to  such  persons  only  as  held  by  socage,  and  had  an  estate  of  Inheritance 
in  fee  simple.  But  copyholds,  not  being  held  by  socuge-tenure,  could  not  be 
devised  under  these  statutes,  nor  were  they  made  devisable  by  any  clause  in 
the  statute  of  frauds;  they  were  considered  to  be  in  their  nature  not  properly 
the  subject  ofa  devise,  as  not  passing  by  a  will  merely  as  a  will,  but  by  will 
and  surrender  taken  together.  The  practice  used  to  be,  to  surrender  to  the 
use  of  the  owner's  last  will,  and  on  this  surrender  the  will  would  operate  as  a 
declaration  of  the  use,  and  not  as  a  devise  of  the  land  itself  A  devise  there- 
fore of  copyhold  lands,  or  of  customary  lands  which  pass  by  surrender  and 
admittance,  would  not  require  any  attestation;  nor  would  it  require  a  signa- 
ture, unless  a  signature  were  made  necessary  by  the  terms  of  the  surrender  to 
the  use  of  the  will.  WagstafT  v.  Wagstaff,  2  P.  VVras.  258.  Tuffnell  v.  Page, 
2  Atk.  37.  Carey  v.  Askew,  2  Bro.  Ch.  Rep.  58.  Doe  dem  Cook  v.  Danvers,  7 
East,  299.  322.     But  it  has  been  enacted  by  a  late  act  of  parliament,   st.  55   G.  3. 

55  G.  3.  c.  192,  that  a  disposition  of  copyhold    estates  by  will  shall   bo  effectual,  without  a 

previous  surrender  to  the  uses  of  the  will. 

(r)  See  Note  918,  p.  1332.     (j)  See  Note  919,  p.  1339.     (0  See  Note  920,  p. 
1340.     (u)  Sea  Note  921,  p.  1341.     (v)  See  Note  922,  p.  1342. 


St!ct.  2.]  Of  the  Proof  of  Wills.  496 

altesl  a  will  under  which  he  took  an  interest.  (I)  (w)  But  an  exec- 
utor, who  took  nothing  under  the  will,  and  had  no  interest  in  the 
residue,  was  always  considered  a  competent  attesting  witness.  (2)  (x) 

Considerable  doubts  were  afterwards  entertained  whether  the 
competency  of  such  an  interested  person  might  not  be  restored 
by  a  release,  payment,  or  extinguishment  of  all  his  interest,  so 
as  to  admit  him  to  prove  the  execution.  (3)  {y)  In  consequence  S'-  23  G.  2 
of  this  difference  of  opinion,  the  legislature  passed  an  act,  which 
(after  reciting,  that  it  had  been  doubted  who  were  to  be 
deemed  legal  witnesses  within  the  statute  of  frauds)  enacts,  (4) 
that  "  if  any  person  shall  attest  the  execution  of  any  will  or 
codicil  (to  whom  any  beneficial  devise,  legacy,  estate,  interest, 
gift,  or  appointment  aflecting  any  real  or  personal  estate,  except 
charges  on  land,  &c.  for  payment  of  debts  shall  be  given,)  such 
devise,  legacy,  &c.  shall  so  far  only  as  concerns  such  person 
attesting  the  execution,  or  any  person  claiuiing  under  him,  be 
utterly  null  and  void;  and  such  person  shall  be  admitted  as  a 
witness  to  the  execution  of  such  will  or  codicil,  within  the  intent 
of  the  said  act,  notwithstanding  such  devise,  legacy,  &c.  And 
in  case  any  will  or  codicil  shall  be  charged  with  any  debt,  and 
any  creditor,  whose  debt  is  so  charge{.l,  shall  attest  the  execu- 
tion of  such  will  or  codicil,  every  such  creditor,  notwithstanding 
such  charge,  shall  be  admitted  as  a  witness  to  the  execution  of 
such  will  or  codicil,  within  the  intent  of  the  said  act:  Provided 
always,  that  the  credit  of  every  such  witness,  so  attesting  the 
execution  of  any  will  or  codicil  in  any  of  the  cases  within  this 
act,  and  all  circumstances  relating  thereto,  shall  be  subject  to 
the  consideration  and  determination  of  the  court  and  the  jury, 
before  whom  any  such  witness  shall  be  examined,  or  his  testimony 
or  attestation  made  use  of,  in  like  manner  as  the  credit  of  wit- 
nesses in  all  other  cases  ought  to  be  considered  and  determined,  (z) 
The  former  part  of  this  statute  restores  the  competency  of  the 
attesting   witness,    by   extinguishing   all   interest   which  he    would 

(1)  Ililliard    v.     Jennings,    1    Lord  (3)    See   on    this  subject   Anstey   v. 
Ilaym.  505.     Com.  Rep.  91,  S.  C.  Dowsing,     2    Stra.     1253.      Wyndham 

(2)  Anon,   case,  1    Mod.    107.     Bet-  v.    Chetwynd.    1    Burn,    414.     Hindson 
tison  V.  Sir  R     Bromley,  12    East,  250.  v.  Kersey,  4  Burn.  Eccl.  Law,  88. 
Phipps    V.    Pitcher,  1  Madd.  Rep.    144.  (4)  St.  25  G.  2,  c.  6,  s.  1,  2,  6. 

6  Taunt.  220,  S.  C. 


{w)  See  Note 923,  p.  1342.    (x)  See  Note  924,  p.  1343.  (y)  See   Note  925,  p. 
1343.     («)  See  Note  926.  p.  1343. 


49G 


Of  the  Proof  of  Wills. 


[Ch.  8. 


Proof  of  con- 
tents of  wills. 


Otherwise  take  under  the  will.  It  applies  to  the  case,  where  the 
attesting  witness  is  himself  the  legatee  or  devisee;  and  as  to  him, 
and  any  person  claiming  under  him,  it  makes  the  devise  or 
legacy  absolutely  void.  It  does  not  extend  to  the  case,  where 
the  attesting  witness  is  the  husband  of  a  devisee,  who  takes  an 
estate  in  remainder  under  the  will:  such  an  attesting  witness  is 
not  made  competent,  by  the  statute,  to  prove  the  will.  (1)(«) 

The  best  proof  of  the  contents  of  a  will  is  the  original  will 
itself.  An  exemplification  under  the  great  seal  is  not  evidence 
in  an  action  of  ejectment;  (2)  nor  is  the  probate  of  a  will  in  the 
spiritual  court  any  proof  of  a  devise  of  real  property;  for  if  the 
original  is  in  existence,  the  copy  is  not  evidence;  and  the  seal  of 
the  Court  does  not  prove  it  a  true  copy,  unless  the  suit  relate 
only  to  the  personal  estate.  (3)  But  where  the  contents  of  a 
will  are  given  in  evidence,  not  to  establish  a  devise,  but  merely 
for  the  purpose  of  proving  a  relationship,  as  stated  in  the  will, 
the  rolls  of  ihe  spiritual  court,  which  has  authority  to  enrol 
have  been  thought  admissible;  (4)  and  if  the  original  will  has 
been  lost,  the  register-book  or  the  ledger-book,  in  which  the  will 
is  set  out  at  length,  would  be  good  evidence  of  its  contents.  (5)  (6) 


Proof  of  exe- 
cution by 
subscribing 
witness. 


The  execution  of  a  will  is  to  be  proved  by  the  subscribing 
witnesses,  if  they  are  alive  and  can  be  produced.  On  a  trial  at 
common  law,  all  the  circumstances  may  be  proved  by  a  single 
witness;  that  is,  upon  the  supposition,  that  there  are  two  others, 
who  would  be  allowed  to  give  the  same  testimony.  (6)  If  the 
opposite  party  disputes  the  regularity  of  the  execution,  he  may 
call  any  of  the  other  witnesses;  but  a  devisee  will  not  be  obliged 
to  call  the  rest,  if  one  alone  can  prove  all  the  requisites  to  estab- 
lish the  validity  of  the  will.  This  is  the  rule  in  courts  of  com- 
mon law.  (c)  But  on  a  bill  filed  in  Chancery  to  establish  a  will, 
tbe  rule  is,  that  all  the  witnesses  ought  to  be  examined  by  the 
plaintiff.     "  It  is  the  invariable  practice  in  Chancery,"  said  Lord 

(1)  Hatfield   v.   Thorp,  5   Barn.    &         (5)    St.    Legar   v.     Adams,    1    Lord 
Aid.  589.  Raym.  731.     Skinner,  174. 

(2)  Comberb  46.  (6)  By  Lee  C.  J.  in  Anstey  v.  Dows- 

(3)  Bull.  N.  P.  246.     1  Lord  Raym.     ing,  2  Stra.  1254.     Bull.  N.  P.  264. 
732. 

(4)  Buller,  N.  P.  246. 


(rt)  See  Note  927,  p.  1344.  (6)  See  Note  928,  p.  1345.  (c)  See  Note  929,  p.  1349. 


Sect.  2.]  Of  the  Proof  of  Wills.  497 

Camden,  in  ihe  case  of  Hindson  v.  Kersey,  (1)  "  never  to  establish  Proof  of 

.,,  ,  ,,     I  •  -11  11-1         execution. 

a  Will,  unless  all  the  witnesses  are  examined,  because  the  heir  nas 

a  right  to  proof  of  sanity  from  every  one  of  those  whom  the  statute 
has  placed  about  his  ancestor."  [d)  And  on  the  trial  of  an  issue 
directed  by  the  Court  of  Chancery,  lo  examine  the  validity  of  a 
will,  all  the  attesting  witnesses  ought  to  be  examined;  for  the  issue 
is  part  of  the  proceedings  of  the  Court.  When  tlie  Court  sends  an 
issue  to  be  tried,  it  reserves  lo  itself  the  review  of  all  that  passes; 
and  there  would  be  an  inconsistency  in  requiring  that  all  the  three 
witnesses  should  be  examined  in  the  Court  of  Chancery,  yet  dis- 
pensing with  their  examination  on  the  trial  of  an  issue  at  law.  (2)  (e) 

The  facts  to  be  proved  by  the  subscribing  witnesses  are,  that 
the  devisor  signed  the  will,  or  that  another  person  signed  in  his 
presence  and  by  his  express  direction,  and  that  the  witness  and 
two  others  attested  and  subscribed  in  the  presence  of  the  devisor. 
First,  as  to  the  signing  by  the  testator,  it  is  not  material  in 
what  part  of  the  will  he  makes  his  signature.  The  statute  pre-  Signing. 
scribes  no  particular  form,  and  does  not  require  him  to  subscribe, 
but  simply  to  sign.  It  was  therefore  determined,  in  a  case  soon 
after  the  passing  of  the  statute,  that  if  the  testator  writes  his 
name  at  the  beginning  or  on  the  side,  the  signing  is  sufhcient.  (3) 
But  where  a  will  consisted  of  several  distinct  sheets,  some  of 
which  the  testator  signed,  and  intended  to  sign  the  rest,  but  v.'as 
not  able,  Lord  Mansfield  thought  this  was  not  a  signing  of  the 
whnle  will.  (4)  According  to  Freeman's  report  of  the  case  of 
Lemayne  v.  Stanley,  (5)  the  Court  said,  "  It  is  not  necessary  to 
write;  for  some  cannot  write,  and  their  mark  is  then  a  sufficient 
signing:  others  have  their  name  on  a  stamp,  and  that  is  good 
enough."  In  that  case  also,  three  judges  held,  that,  if  the  tes- 
tator had  put  his  seal,  that  would  have  been  of  itself  a  sufficient  Sealing. 
signing  within  the  statute  ;  but  Levinz  J.  doubted,  on  the  autho- 
rity of  a  case  in  Rolle's   Abridgment,  where  the  Court  held,  that 

(4)  4  Burn.  Eccl.  Law,  93.     Oi^le  v.  (4)     Riglit    deni.  Cater    v.    Price,     1 

CooI<,  1  Ves    177;  Tovvnsend    v.    Ives,  Doug.   241.     9    Ves.    249.     Waliier   v. 

1  Wits.  216,  S.  P.  WalUer,  1  Meri.vale,  .50.S. 

(2)  Bootie   V.    Blundell,    1     Cooper,  (5)   P.    533.       See    also    Ilindson    v. 
Ch.  R.  136.  Kersey,    4  Burn.  Eccl.    Law,    92,  S.  P. 

(3)  Leinauye  v.    Stanley,    3    Lev.  1.  by  Pratt,  C.  J. 
Hilton  V.  King,  3  Lev.  86.     9  Ves.  248. 


(d)  See  Note  930,  p.  13.50.     (c)   Sec  Note  931,  p.  1351. 

Vol.  I.  63 


498  Of  the  Proof  of  Wills.  [Ch.  8. 

Proof  of  execa-  an  award  which  by   the  submission  ought  to  have  been   signed  \>y 

the   arbitrator,   was  not  good    in  law,    because  it  had    been   only 

sealed.  (1)  Lord  Raymond  ruled  in  a  case  at  nisi  prius,  (2)  and 
Lord  Holt  is  also  reported  to  have  said,  (3)  that  sealing  was  a 
signing  within  the  statute.  But  later  authorities  appear  to  have 
considerably  shaken  this  doctrine;  (4)  and  now  the  established 
rule  seems  to  be,  that  sealing  without  signing  is  not  a  sufficient 
execution  of  the  will.  A  bare  sealing  certainly  cannot  answer 
the  purposes  which  the  legislature  had  in  view:  it  cannot  identify 
the  instrument,  nor  does  it  bear,  like  writing,  any  peculiar  cha- 
racter. "  The  statute,"  said  Lord  Hardwicke,  in  one  of  the 
cases  upon  this  subject,  (5)  "  by  requiring  the  will  to  be  signed, 
undoubtedly  meant  some  evidence  to  arise  from  the  hand  writing; 
then  how  can  it  be  said  that  putting  a  seal  to  it,  would  be  a 
sufficient  signing.''  for  any  one  may  put  a  seal.  No  particular 
evidence  arises  from  sealing  ;  common  seals  are  alike;  no  cer- 
tainty or  guard  arises  from  thence." 

In  a  late  case,  where  it  appeared  that  the  testator  was  blind, 
the  Court  of  Common  Pleas  determined,  that  it  was  not  neces- 
sary to  read  over  the  will  previous  to  the  execution,  in  the 
presence  of  the  attesting  witness.  (6)  "  The  statute  of  frauds," 
said  Mr.  Justice  Heath,  on  that  occasion,  "  only  requires,  that 
the  testator  shall  execute  the  will  in  the  presence  of  ihe  attesting 
witnesses,  and,  in  ordinary  cases,  when  that  is  done,  all  is  done 
that  is  necessary.  In  the  case  of  a  blind  man,  stronger  evidence 
would  be  required  than  the  mere  attestation  of  signature:  but  in 
this  case  there  was  that  stronger  evidence  which  the  peculiarity 
of  the  case  seems  to  call  for.  Sufficient  attention,"  continued 
Mr.  Justice  Heath,  "  has  not  been  paid,  in  the  course  of  the 
argument,  to  the  distinction  between  what  shall  be  deemed  a 
literal  compliance  with  the  provisions  of  the  statute,  and  what 
sufficient  proof  to  rebut   any  imputation  of  fraud.      The   question 

(1)  See  ante,  p.  472.  llarclwicUe,  2  Ves.  -459;  Ellis    v,  Smilli, 

(2)  Warneford  v.  VVarneford,  2  Stra.  1  Ves.  jun.  1 1 ,  liy  Parker,  C.  B  ,  Willes 
764.  C.  J.,  and  Sir  J.  Strange.     See   also  17 

(3)  Lee  v.  Libb,  1  Show.  68.  Ves.  458.   IS  Ves.   175. 

(4)  Smith  V.  Evans,  1    Wils.  313,  by  (5)   2  Ves.  459. 

Parker  C.  D.  and  the  two  other  Barons  (6)  Longchanip  v.  Fish,  2  New  Rep. 
present.     Grayson  v.  .\tkin9on,  by  Lord     415. 


Sect.  2. j  Of  (ho  Proof  oj  Wills.  499 

of  fraud  is    for  the  jury   entirely,  and   Ijere    iliey  found   the  will  to  Proof  of 
be  a  valid  will."  (/)  


The  subscribing  witnesses  are  to  attest  the  signing;  but  the  Auestatioo. 
statute  does  not  direct  that  they  shall  see  the  testator  sign,  or 
(hat  he  should  sign  in  their  |iresence.  It  requires  only  an  at- 
testation of  the  signing.  Now,  at  the  lime  of  making  that  act 
of  parliament,  and  ever  since,  if  a  bond  or  deed  had  been  signed 
by  the  party,  who  afterwards  acknowledged  it  to  be  his  hand- 
writing before  witnesses,  that  was  always  considered  to  be  evi- 
dence of  the  signing  by  the  person  executing,  and  a  sufficient 
attestation  by  the  subscribing  witnesses:  (1)  and  the  rule  is  pre- 
cisely the  same,  where  a  note  or  declaration  of  trust,  or  any 
other  instrument  which  requires  a  bare  signing,  is  acknowledged 
before  witnesses.  From  analogy  to  these  cases,  it  has  been  What, 
determined  in  the  case  of  wills,  that  the  subscribing  witness 
need  not  see  the  act  of  signing,  but  that  it  will  be  sufficient  if 
the  testator  has  acknowledged  to  them,  either  to  each  separately 
or  to  all  at  the  same  time,  that  the  will  is  his,  or  that  the  sig- 
nature is  his  hand-writing.  (2)  And  the  subscribing  witneses  need 
not  express  in  their  attestation,  that  they  subscribed  their  names  in 
the  presence  of  the  testator;  but  whether  they  did  so  subscribe,  is 
a  question  for  the  consideration  of  the  jury,  to  be  determined  up- 
on the  evidence.  (3) 

The  statute  requires  the  witnesses  to  attest  the  signing  and 
to  subscribe,  but  does  not  direct  that  they  shall  be  all  present 
at  the  satne  time;  and  although  an  attestation  and  subscrip- 
tion by  all  the  witnesses  at  the  same  time  would  be  the  best 
security  against  fraud  and  imposition,  by  making  each  a  check 
upon  the  other,  yet  in  the  interpretation  of  the  statute,  courts  Separate. 
of  law  early  determined,  and  it  is  now  an  established  rule  of 
property,  that  the  witness  may  subscribe  at  several  times.  (4) 

(1)2  Vc3.  457.  (3)   Brice  v.  Smith,  Willes^s  Rep.  1. 

(2)  Stonehouse    v.     Evelyn,      3     P.  4    Taunt.    217.       As  to    the    execution 

Wms.     253.       Grayson    v       Atkinson,  under   powers,  see  ante,  p.  46S. 

2  Ves.    454.     Ellis    v.    Smith,    I     Ves.  (4)     C -ok     v.      Parsons,     Prec.      in 

jun.   11.      Addy    v.  Grix,   8   Ves.  504.  Ciian.      185.     Jones   v.    Lake,    2  Atk. 

Westbeech    v.     Kennedy,    1    Ves.    &  177,    in    note,   S.    P.      Admitted  in  2 

Beam.  362.  Vea.  458,  and  in  1  Ves.  jun.  14. 


(/)  See  Note  932.  p   1352. 


500 

Proof  of 
execution. 


Of  tht  Proof  of  Wills. 


[Ch.    8. 


Mark. 
Entire  will. 


Presence  of 
testator. 


What. 


An   attestation   by    a  mark   has  been   adjudged   to  be   a  sufficient 
subscription  within  the  meaning  of  the  statute.  (1) 

It  is  not  necessary  that  the  testator  should  declare  the  in- 
strument, executed  by  him,  to  be  his  will,  or  that  the  witnesse.s 
should  attest  every  page,  or  that  every  page  should  be  parti- 
cularly shown  to  them.  (2)  The  whole  will,  however,  ought 
to  be  present  at  the  time  of  attestation;  for  if  a  person  makes 
a  will  on  several  pieces  of  paper,  and  there  are  three  witnesses 
to  the  last  paper,  and  none  of  them  ever  saw  the  will,  this  is  not 
a  sufficient  execution.  (3)  But  unless  there  is  positive  proof 
that  the  entire  will  was  not  in  the  room,  the  question,  whether 
it  was  so  or  not,  is  a  "question  of  fact  to  be  left,  with  all  the 
particular  circumstances  of  the  case,  to  the  consideration  of  the 
jury.  (4) 

The  witnesses  are  to  attest  and  subscribe  in  the  presence  of 
the  testator;  and  as  the  object  of  this  provision  was  to  guard 
against  fraud,  and  prevent  the  substitution  of  a  false  will  in  the 
place  of  the  true  one,  the  obvious  meaning  of  the  statute  must 
be,  that  the  testator  should  be  in  such  a  state  of  mind,  and  in 
such  a  situation,  as  to  be  capable  of  seeing  the  witnesses  in  the 
act  of  subscribing.  It  will  not  be  a  good  execution,  if  the 
testator  was  in  a  state  of  insensibility,  (5)  or  if  it  was  impossible 
for  him  to  see  the  w'itness  subscribe.  "It  is  enough,  if  the 
testator  might  see,  it  is  not  necessary  that  he  should  actually 
see  them  signing;  for,  at  that  rate,  if  a  man  should  turn  his 
head  back,  or  look  off,  that  would  vitiate  the  will."  (6)  But  if 
the  jury  find  the  fact,  that  the  testator  might  have  seen  what  was 
passing  at  the  time  of  the  subscribing,  then  it  will  be  presumed 
in  favour  of  the  attestation,  that  the  testator  actually  saw  what 
he  might  have  seen.  In  one  case,  the  testator  was  sick  in  bed, 
and  the  witnesses  withdrev/  into  a  gallery,  and  there  subscribed 
it;  between  which  gallery  and  the  bedchamber  where  the 
testator  lay,  there  was  a  lobby    with  glass    doors,  and  part  of  the 

(1)  Harrison  v.  Harrison,  8  Ves.  (3)  Lea  v.  Libb,  3  Mod.  262.  1. 
185.     Addy  v.  Grix,  ib.  501.                       Eq.  Cas.  Ab.  403,  S.  P. 

(2)  Bond  V.  Scawell,    3   Burr.    1775.         (4)  Bond  v.  Seawell,  3  Burr.  1773. 
1  Black.  Rep.  407,  422,  454.  (5)  Cater  v.    Price,  1  Doug    241. 

(6)  Shires  v.  Glascock,  2  Salk    6S7. 


Sect.  2.]  0/  the  Proof  of  WiUs.  601 

glass  was   broken.  (1)      In  another   case,  the   testator  hiy  in   bed  fr^of  of 
o                                       ^    '                                                                                               execution. 
in  one   room,  and   the   witnesses   vvent   through  a   small   passage 

into  another  room,  and  there  set  their  names  at  a  table  in  the 
middle  of  the  room,  and  opposite  to  the  door,  and  boih  that  and 
the  door  of  the  testator's  room  were  open.  (2)  In  a  tliird  case, 
the  testatrix  sat  in  her  carriage  opposite  the  window  of  her 
attorney's  office,  in  which  office  the  witnesses  subscribed  their 
names.  (3)  In  all  these  cases  (and  in  others,  which  might  be 
mentioned  to  the  same  effect,  differing  only  in  their  peculiar  cir- 
cumstances,) the  execution  was  held  to  be  sufficient,  the  material 
fact  being  proved,  that  the  testator  might  have  seen  the  attest?^- 
tion,  if  he  had  chosen  to  look. 

If  one  of  the  subscribing  witnesses  can  prove  the  execution  Proof  by  one 
(as,  that  the  testator  signed  in  the  presence  of  himself  and  two 
other  witnesses,  or  that  he  acknowledged  his  signing  to  each 
of  them,  and  that  each  of  the  witnesses  ijubscribed  in  his  pres- 
ence,) this  will  be  a  sufficient  proof  of  the  will  without  calling 
the  others.  But  if  the  witness,  who  is  called,  can  only  prove 
his  own  share  in  the  transaction,  as  must  happen  where  the 
testator  acknowledged  his  signing  to  the  witnesses  separately,  the 
other  witnesses  ought  in  that  case  to  be  called.  If  they  are  dead 
or  insane,  their  hand-writing,  and  the  hand-writing  of  the  tes- 
tator ought  to  be  proved;  it  will  then  be  a  question  for  the  jury, 
whether,  under  the  circumstances  of  the  case,  it  is  probable  that 
all  the  formalities  of  the  statute  were  regularly  observed.  (4) 

The  cause  of  attestation  generally  expresses,  that  the  witnesses  ^°\^  ^^  nxiea- 
subscribed  in  the  presence  of  ihc  testator;  but  such  a  statement 
is  not  absolutely  necessary;  and  though  it  is  entirely  omitted, 
the  omission  will  not  conclude  the  jury  from  finding,  that  the 
will  was  so  subscribed.  In  the  case  of  Croft  v.  Pawlett,  (5)  the 
attestation  was,  that  the  will  had  been  signed,  sealed,  published, 
and   declared  as  his  last  will,  in   the  presence   of  the  subscribing 

(1)  Sir     G.      Sheer's     case,      cited         (4)  Hands    v.     James,    2    Comyn's 
Carth.  81.  Rep.    530.      Croft    v.  Pawlet,    2   Stra. 

(2)  Davy     and    another    v.    Smith,  1109.     Brice  v.  Smith,  Willes's  Rep.  1. 
3  Saik.  395.  S.    P.     Lord    Ranciiffe    v.    Parkyns,    6 

(3)  Cosson    V.  Dade,  1  Brown,  Ch.  Dow.  202. 

C.    99.      See    also    Doe  dam.    Wright         (5)  2  Str.  1109. 
and  others    v     Manifold,     1     Maule  & 
Selw.  294. 


oO'i 


Of  the  Proof  of  Wills. 


[Cli.   8. 


Proof  of 
execution. 


Witness 
abroad. 


Witness  deny- 
ing. 


wimesses:  ilie  uiinesses  being  dead,  and  ilieir  Bignatures  proved 
in  tl)e  common  way,  il  was  objected,  tliat  this  was  not  an  exe- 
cution according  to  the  statute  of  frauds;  for  the  signatures  of 
the  witnesses  could  only  stand  as  to  the  facts  to  which  they  had 
subscribed,  and  signing  in  the  presence  of  the  testator  was  not 
one:  but  the  Court  were  of  opinion,  that  this  was  a  matter  of 
evidence  to  be  left  to  the  jury,  and  they  gave  a  verdict  in  favour 
of  the  will,  {g) 

If  a  subscribing  witness  is  abroad,  who  ought  to  be  called  if  he 
could  be  produced,  his  hand-writing  may  be  proved  in  the  case  of 
a  will,  as  in  cases  on  the  execution  of  a  deed;  and  the  ride  appears 
to  be  the  same  in  courts  of  equity.  'J'hus,  where  a  question  arose, 
whether  il  was  necessary  to  send  out  a  coinmission  to  examine  one 
of  the  witnesses,  who  was  in  Jamaica,  Lord  Alvanley,  then  Mas- 
ter of  the  rolls,  held,  that  it  was  not  necessary  to  have  his  examina- 
tion, but  that  the  case  was  the  same  as  if  the  witness  were  dead: 
(I)  the  heir  at  law,  he  observed,  did  not  make  a  point  of  it,  but 
submitted  it  to  the  Court;  and  he  cited  a  case,  wh.ere  it  was 
thought  not  only  unnecessary,  but  very  dangerous  to  send  the  will 
abroad.  And  in  another  case,  where  it  was  objected,  that  one  of 
the  witnesses  was  abroad,  Lord  Chancellor  Thurlow  said,  he  doubt- 
ed whether  the  rule  had  ever  been  laid  down  so  largely,  as  that  the 
will  could  not  be  proved  wit!)out  examining  all  the  witnesses  al- 
though that  had  been  the  practice.  (2)  (/i) 

If  a  subscribing  witness  should  deny  the  execution  of  the  will, 
he  niay  be  contradicted,  as  to  that  fact,  by  another  subscribing 
witness  ;  and  even  if  they  all  swear  that  the  will  was  not  duly 
executed,  the  devisee  would  be  allowed  to  go  into  circumstantial 
evidence,  to  prove  the  due  execution.  (3)(?)  If  one  of  the  sub- 
scribing witnesses,  impeach  the  validity  of  the  will  on  the  ground 
of  fraud,  and  accuse  other  witnesses,  who  are  dead,  of  being  ac- 
complices in  the  fraud,  the  devisee  may  give  evidence  of  their 
general  good  character.  (4)(  j) 


(1)  Ld  Carrington  v.  Payne,  5 
Ves.  411. 

(2)  Powel  V.  Cleaver,  2  Brown, 
Ch.  C.  504.  See  Grayson  v.  Atkin- 
son, 2  Ves.  460. 


(3)  Austin  V.  Willes,  Bull.  N.  P. 
264.  Pike  v.  Badniering,  cited  2  Stra. 
1096.  Lowe  v.  Joliffe,  1  Black.  Kep. 
365. 

(4)  Vide  supra,  p.  308. 


ig)  See  Note  933,  p.  1352.     (A)  See  Note  934,  p.  1354.     (t)  See  Note  935,  p. 
1356.     (>)  See  Note  936,  p.  1356. 


Sect.  2.]  Of  the  Proof  of  Wills,  603 

Wlien    tlie  subscribing  witnesses   are   dead,    and    no  proof   of  P'■o"''o''exe- 
,     .      ,        ,        .  .                   11-1                         r               II               cution. 
llieir   hand-wnling   can   he  obtained,   as   mnst   Irequenily    happen 

in  the  case  of  old  wills,  it  will    be  sufficient  to  prove  tlie  signature  ^'i?"'^*'^"''* 

'  °  wills. 

of  the  testator  alone.  In  a  case,  (1)  where  the  hand-uriiing  of 
two  subscribing  witnesses  was  proved,  and  no  account  could 
be  given  of  the  third,  the  will  being  above  thirty  years  old,  and 
the  testator  having  been  dead  for  twenty  years,  an  objection  was 
made  to  the  proof  of  the  will;  but  the  Master  of  the  Rolls  said, 
he  could  not  see  any  distinction  in  this  respect  between  a  will 
and  a  deed,  except  that  the  former,  not  having  effect  till  the 
death,  wants  a  kind  of  autlienticaiion,  which  the  other  has;  that 
is,  from  the  nature  of  the  subject;  but  in  this  case,  he  added,  I 
think  the  proof  sufficient:  for  in  a  late  case  in  the  Court  of 
King's  Bench,  Cunliff  v.  Sefton,  (2)  an  enquiry  of  the  same 
kind  was  held  sufficient.  The  Master  of  the  Rolls  therefore 
held,  that  the  execution  of  the  will  had  been  sufficiently  proved. 

In  the  case  of  CaliliMrpe  v.  Gough  and  others,  at  the  Rolls,  (3)  Thirty  years 
a  will  thirty  years  old  (reckoned  from  the  date  of  the  will,  not  °'*^' 
from  'the  testator's  death,)  was  not  proved  by  witnesses;  and  it 
was  said  at  the  bar,  that  proof  was  not  necessary  on  account  of 
the  age  of  the  will;  and,  in  support  of  this,  a  case  of  Mackery  v. 
Newbolt  was  ciied,  in  which  Sir  Lloyd  Kenyon,  then  Master  of 
the  Rolls,  is  said  to  have  decided,  that  a  will  above  thirty  years 
old  should  be  read  without  proof,  although  the  testator  had  died 
very  recently.  That  point,  however,  was  not  decided  in  the 
case  of  Calthorpe  v.  Gough,  because  the  plaintiff,  the  heir  at 
law,  admitted  the  will,  and  claimed  under  it.  In  the  late  case  of 
Lord  Randiffe  v.  Parkyns,  (4)  the  Lord  Chancellor  is  reported 
to  have  expressed  an  opinion,  that  a  will,  thirty  years  old,  if 
there  has  been  possession  under  it,  proves  itself,  when  the  attes- 
tation records  the  fact  of  the  signing  of  the  witnesses  in  the  tes- 
tator's presence;  and,  if  the  signing  is  not  sufficiently  recorded, 
yet  that  the  fact  of  possession  under  the  will,  and  claiming  and 
dealing  with  the  property  as  if  it  had  passed  under  the  will, 
would   be  cogent   evidence  to    prove  tlic   duly  signing   by  the  wit- 


(1)  Al'Kenzie  v.  Fraser,  9  Ves.  5.  n.  (t). 

(2)  2  East,  183.  (4)  6  Dow.  202. 

(3)  4  Term     Rep.    '0~.  n.  (a),  709. 


504  Of  Stamping.  [Ch.  9. 

nesses.  (1)  The  general  rule  seems  to  be,  lliat  a  will,  thirty  years 
old,  unless  there  has  been  possession  under  it,  ought  to  be  proved 
like  any  oilier  will.  (A:) 

(1)  6  Dow.  202. 

CHAP.    IX. 

Of   Stamping,    as  a    Requisite  of    Wriilen    Instruments. 
General  rule. 

A  WRITTEN  instrument,  which  requires  a  stamp,  cannot  be 
admitted  in  evidence,  unless  it  be  duly  stamped;  and  no 
parol  evidence  will  be  received  of  its  contents.  If,  therefore, 
the  instrument  produced  is  the  only  legal  proof  of  the  transaction, 
and  that  cannot  be  admitted  for  want  of  a  proper  stamp,  the 
transaction  cannot  be  proved  at  all;  (1)  as,  in  an  action  for  use 
and  occupation,  if  it  appear  that  the  defendant  held  under  a 
written  agreement,  which  for  want  of  a  stamp  cannot  be  received, 
the  plaintiff  will  not  be  allowed  to  go  into  general  evidence;  for 
the  agreement  is  the  best  evidence  of  the  nature  of  the  occupa- 
tion. (2)  Parol  evidence  of  a  lost  agreement  cannot  be  received, 
if  the  agreement  was  on  unstamped  paper;  though  it  has  been 
wrongfully  destroyed  by  one  of  the  parties,  yet  the  other  party 
will  not  be  permitted  to  approve  its  contents  by  parol  evidence: 
;his  is  one  of  the  risks  which  attend  the  omission  to  have  the 
agreement  properly  stamped,  that,  if  any  accident  happen  to 
it,  before  the  stamp  is  affixed,  ail  remedy  by  action  is  entirely 
gone.  (3) 

Proof  of  the  But  it  may   happen  in   a  variety  of  cases,  that   the  transaction 

witJwut 'writ-    '^  capable  of  being  proved  by  other  evidence   besides  the  written 
'"g-  instrument;  and   the   objection,  arising  from  the  stamp-acts,  may 

be  avoided  by  resorting  to  that  other  species  of  proof.  Thus, 
although  an  unstamped  receipt  for  the  payment  of  a  bill  is  not 
admissible  in  evidence,  yet  the  fact  of  payment  may  be  proved 
by  a   witness,   who   saw   the  money  paid;  and   even   such  an  un- 

(1)  R.  V.  St.  Paul's,  Bedford,  6.  T.  C.  213.  Doe  dem.  St.  John  v.  Hore, 
R.  452.  Hodges  V.  Drakeford,  1  New  2  Esp.  N.  P.  C.  724.  Ramsbottom  v. 
Rep.    271.     R.    V.    Castle    Morton,    3     Mortley,    2  Maule  &  Selw.  445. 

Barn.  &  Aid.  588.  (3)  Rippener  v.   Wright,  2  Barn.    & 

(2)  Brewer  v.   Palmer,  3  Eap.  N.   P.     Aid.  478. 

(fc)  See  Note  937,  p.  1356. 


Ch.  9.]     as  a  Requisite  of  Written  Instruments.  505 

stamped  receipt  may  be  shown   to  the  witness,  as  a  ineniorandum 
to  refresh   his    memory.  (1)      So,    in  an  action   on  a   promissory 
note,    though    the   plaintiff    (annot  give    the  note  in    evidence, 
unless   it   is   duly   stamped,   yet  he  will   not  be   precluded    from 
recovering  on   one  of  the  general    counts  of  the  declaration,  if  he 
can  prove  an    admission  of  the  general    debt,  or  give   other   evi- 
dence of  a  consideration   received   by  the  defendant.  (2)     When  Admission  on 
a    party   to   the   suit   admits    en    the   record    that   which,   if   not  '^^'^"'^  ' 
admitted,  the  other  party  must  regularly  prove,  it  cannot  be  neces- 
sary to  produce  that  evidence  which  would  otherwise  be  required. 
Thus,    where   an   action   is   brought   upon  an   agreement,    which 
ought  to  be  stamped,  and   the  form  of  the  pleading   is  such   as  to 
make  it  unnecessary  at  the  trial   to  produce  the  instrument,  (as,  if 
it  is  admitted  on  the  record,  and  the  trial  is  upon   issues  collateral 
to  the   existence  of   the   agreement,)  a  court  of  law   will   not  ex- 
amine, whether  the   instrument  is  legally  available   with  reference 
to  the  stamp-acts.  (3)      So,  where  a  plaintiff  filed  a   bill  in  Chan- 
cery for  the  specific  performance  of  an  agreement,  contained  in  a 
correspondence  between  him   and  the   defendant,  and   the   answer 
of  the  defendant    admitted   the  letters,   insisting   only,   that  they 
did  not  amount  to   an  agreement,  \he  Court  held  that  such  an  ad- 
mission dispensed  wiih  the  necessity  of  producing  the  letters,  and 
that  no   objection   to  the   agreement  could    be   taken  for   the  want 
of  a  stamp.  (4) 

Written  agreements  and  other  instruments,  made  in  a  foreign  Foreign 
country,  are  not  admissible  m  evidence  m  any  oi  our  courts, 
unless  duly  stamped  by  the  laws  of  that  country:  if  they  are  not 
obligatory  abroad,  they  cannot  be  enforced  here.  Where  a 
promissory  note  had  been  made  in  Jamaica,  but  not  stamped  as 
it  ought  to  have  been  by  the  laws  of  that  island,  the  Court  of 
King's  Bench  held,  that  a  party  could  not  recover  here  upon 
the  note.  (5)  The  party,  who  takes  this  objection  to  the  validity 
of  the  instrument,   will  have  lo   show,  that  a  stamp   was  necessary 

(1)  Ilainbert  v.  Coiien,  -1  Esp.  N.  P.  (3)  My  lA.  Eidon  Ch.,  11  Ves.  596. 
C.  213.  Jacob  v.  Lindsay,  \  East,  Iliern  v.  Mill,  13  Ves.  114.  Tliyiine 
460.  V.  Protheroe,  2  Maule  &  Seiw.  553. 

(2)  Farr  V.  Price,  I  East,  57.  Alvea  (4)  Huddlestoii  v.  Briscoe,  11  Ves. 
V    Hodgson,    7   T.    R.   243.      Tyte    v.  5S3. 

Jones,  I  East,  58.  n.  (a).  Brown  v.  (5)  Alves  v.  Hodgson,  7  T.  R.  241. 
Watts,  1  Taunt.  353.  Wade  v.  Beasley,  Ciegg  v.  l^evy,  3  Campb.  166.  Grutchly 
4  Esp.  N.  P.  C.  7.  '       V.  Mann,  5  Taunt.  529. 

Vol.   I.  64 


506  Of  Si  (imping,  [Cli,  9. 

Denomiimiion  by  the  law  of  tlie  country  ;    and  for  iljis  purpose  an  autlienticatod 

'^  '""^' copy  of  the  law  ought  to  be  produced.  (I)      If  a  person,  resident 

abroad,  desire  his  correspondent  in  England  to  fill  up  a  bill  of 
exchange,  and  return  it  to  him  to  be  signed,  and  he  afterwards 
signs  it  abroad,  the  bill  does  not  require  to  be  stamped,  as  if  it 
had  been  drawn  in  this  country  ;  and  the  rule  is  precisely  the 
same,  whether  he  signs  his  name  as  drawer,  before  or  after  he 
sends  it  over  to  this  country  to  be  filled  up  by  his  corre- 
spondent. (2)  In  the  case  of  Snailh  v.  Mingny,  (3)  which  was 
an  action  by  an  indorsee  against  the  indorser,  a  person  resident 
in  Ireland  subscribed  his  name  in  the  character  of  drawer,  and 
afterwards  as  first  indorser,  on  a  paper,  which  was  properly 
stamped  according  to  the  revenue  laws  of  Ireland,  and  had  every 
mark  to  designate  it  as  a  bill  of  exchange;  he  then  sent  it  over 
to  this  country  with  authority  to  his  correspondent  to  insert  the 
day  of  the  date,  the  sum,  and  the  name  of  the  drawee;  and  it 
did  not  appear,  that  there  was  any  intention  of  evading  the  stamp 
laws,  or  any  imputation  of  fraud  in  the  transaction:  under  these 
circumstances,  the  Court  of  King's  Bench  were  of  opinion,  that 
the  bill  was  an  incipient  bill  in  Ireland,  though  it  was  completed 
here,  and  that,  after  it  had  been  completed,  it  was  to  be  con- 
sidered as  a  bill  of  exchange  from  the  time  of  its  being  signed  by 
the  drawer  ;  and  conserjuently  that  an  English  stamp  was  not 
necessary. 

Denomination        j^  jg  j^qj  sufficient,  that  the  stamp  used   is  of  the    proper  value; 
of  stamp.  '  ... 

the  stamp  mu.st  also   be  of  the  proper   denomination,   that   is,  the 

peculiar  stamp  appropriated  to  the  particular  species  of  instru- 
ment. (4)  A  receipt-stamp  will  not  avail,  if  used  upon  a 
promissory  note;  nor  a  note-stamp,  if  used  upon  a  receipt. 
Articles  of  agreement  under  seal  require  a  deed-stamp;  an  agree- 
ment-stamp will  not  be  sufficient,  though  it  may  be  of  greater 
value.  (5)      An   instrument,   containing    a   present    demise   of    a 

(1)  Buchanan  v.    Rucker,  1    Cainpb.  (3)   1  Maule  &  Selw.  87. 

65.    Le  Cheminant  v.  Pearson,  4  Taunt  (4)  Stat.  37  G.    3.  c.  136.    s.  1.  Stat- 

S67.      Millar   v.    Heinriclc,   4    Canipb.  48  G.  3.  c.    149.  s.    4.    Chamberlain  v. 

155.     As  to  proof  of  foreign    laws,  vide  Porter,   1    New    Rep.    30.       Wilson    v. 

snpra,  p.  401.  Vysar,  4  Taunt.  288.  Doe  dem.  Dje  v. 

(2)  Maule  &    Selw.    04.     Boehm    v.  Whitlingham,  4  Taunt.  21. 
Campbell,    (iow,    N.   P.    C.   56.      Mr.  (6)   Robinson  v.    Drybrough,  6  T.  R. 
.Justice    Bayley's   Sunimarv    of  Law  of  317. 

Bills,  &c.  4th  ed.  p.  66. 


Ch.  9.]     as  a  Requisite  of  Written  Instruments.  507 

house,   containirm;   also   an   agrcetncnt  for   goods    and   fixtures   in  Denomination 

,  .....         of  stamp. 

the  house,  requires  a  lea.'se-stainp,  the  one  contract  heing  auxuiary 

to  the  other;  and,  unless  it  is  so  stamped,  cannot  be  given  in 
evidence  as  an  agreement  for  the  sale  of  goods,  in  an  action  to 
recover  the  amount.  (1) 

The  statute  37  G.  3.  c.  136,  contemplates  the  mistakes  which  ^"^  ^-  ^• 
may  arise  in  the  use  of  stamps,  and  makes  provisions  for  those 
mistakes.  It  enacts,  that  where  any  instrument  (except  bills, 
notes,  and  drafts,)  shall  have  been  stamped  with  a  stamp  of  a 
different  denomination,  but  of  equal  or  greater  value  than  that 
required  by  law,  the  commissioners,  upon  payment  of  the  duty 
and  a  penalty  of  5/.,  may  stamp  the  same  with  a  proper  stamp. 
With  re.'-pect  to  bills  and  notes  (which  by  statute  31  G.  3.  c.  25 
were  forbidden  to  be  stamped  after  they  were  made,)  the  statute 
of  the  37th  G.  3.  provides,  that  bills  and  notes,  which  should 
be  made  subsequent  to  that  act,  and  stamped  with  an  improper 
stamp,  but  of  equal  or  greater  value  than  the  stamp  required, 
may  be  stamped  by  the  commissioners  on  payment  of  the  duty 
and  a  penahy.  But  bills  and  notes,  made  before  that  act,  re- 
main in  the  same  situation  as  if  the  act  had  not  passed.  The 
statute  43  G.  3.  c.  127.  s.  6.  provides,  that  if  the  stamp  is  of  the  43  G.  3. 
proper  denomination,  it  shall  not  be  ineffectual  from  being  of  a 
greater  value  than  the  stamp  acts  require.  Before  this  act,  a 
stamp  of  greater  value,  though  of  the  proper  denomination,  had 
been  determined  to  be  insufficient.  (2)  And  the  statute  55  G.  3.  55  G.  8. 
c.  18-1.  s.  10.  provides,  that  all  instruments,  upon  which  any 
stamp  shall  have  been  used  of  an  improper  denon)ination  or  rate 
of  duty,  but  of  equal  or  greater  value  in  the  whole  than  the 
stamp  which  ought  regularly  to  have  been  used,  shall  be  deemed 
valid  and  effectual  in  law,  except  in  cases  where  the  stamp 
used  in  such  instruments  shall  have  been  specifically  appro- 
priated to  any  other  instrument  by  having  its  name  on  the  face. 
In  the  case  of  Taylor  v.  Hague,  (3)  indeed,  before  the  statute  of 
the  43  G.  3.  the  Court  held,  that  a  promissory  note,  upon  a 
stamp  of  a  higher  value  than  was  required,  would  be  available, 
on  the  particular  ground,  that  the   value  was    composed  of  three 

(1)  Corder    v.    Drakeford,   3   Taunt  (2)  Farr  v.  Price,  1  East,  55. 

882.  (3)  2  East,  414. 


508 


Oj  Stamping, 


[on.  'J. 


Several 
stamps. 


Receipl. 


difierent  sums  applicable   to  several   funds,  to   which  the  duties  on 
promissory  notes  were  carried. 


An  account  made  out  by  the  one  party  of  goods  and  cash 
advanced  to  the  other  party,  and  subscribed  by  hiin  as  having 
Acknowledg-  <-i  received  the  contents,"  requires  a  receipt-stamp.  (1)  But  an 
account  of  sums  advanced  to  a  party,  and  of  disbursements  by  him, 
subscribed  by  him,  "  acknowledged  to  be  correct,"  is  admissible 
as  a  mere  acknowledgement  without  stamp.  (2)  An  instrument 
in  the  following  form, — "  received  of  A.  B.  lOOZ.,  which  I  promise 
to  pay  on  demand,  with  lawful  interest,  must  be  stamped  as  a 
promissory  note.  (3) 


Dient. 


Promissory 
note. 


Several 
stamps,  wlieri 
necessary. J 


A  question  has  often  arisen,  whether  an  instrument,  to  which 
several  persons  are  parlies,  requires  several  stamps,  or  whether  a 
single  stamp  is  sufficient.  And  the  distinction  established  is,  that 
if  the  interest  of  the  parties  relates  to  one  thing,  which  is  the 
subject-matter  of  the  instrument,  or,  in  other  words,  if  the  in- 
strument affects  the  separate  interests  of  several,  and  there  is  a 
community  of  the  same  subject-matter  as  to  all  the  parties,  (4) 
there  a  single  stamp  will  be  sufficient:  but  where  the  parties  have 
separate  interests  in  several  subject-matters,  there  ought  to  be  a 
separate  stamp  for  each  party,  against  whom,  or  in  whose  favour, 
the  instrument  is  offered  in  evidence. 


CompositioD 
deed. 


To  illustrate  the  first  part  of  tlie  rule,  if  a  debtor  compounds 
with  his  creditors,  and  each  creditor  signs  the  same  deed,  cove- 
nanting either  to  give  further  day  of  payment,  or  to  take  a  cer- 
tain sum  as  a  composition;  there,  every  covenant  is  in  fact  a 
separate  covenant,  and  the  several  deed  of  each  creditor,  who 
signs  the  deed;  but  the  whole  being  only  one  transaction,  a 
separate  stamp  for  each  person  is  not  required.  (5)  So,  if  several 
persons  bind  themselves  severally  in  a  penalty  by  one  bond, 
conditioned  for  the  performance  of  certain  acts,  by  each  and 
every  of  them,  such  a  bond  requires  only  one  stamp.  (G)  Upon 
the  same  principle,  it   has   been  held,    that  an  agreement   relating 


(1)  Jacob  V.  Lindsay,  I  Eust,  460. 

(2)  Wetland  V.  Moss,  1  Bing.  134. 

(3)  Green    v.    Davies,    4    Barn.  & 
Cress.  235. 

(4)  13  East,  246. 


(3)  1  New  Rep.  27S,  Go(,dson  v. 
Forbes,  6  Taunt.  171.  1  Marshall, 
52.5,  S.  C. 

(6)  Bovvcn  V.  Ashley,  1  New  Rep 
274. 


Ch.  9.]       as  a  Requisite  of  Wrllien  Instruments.  509 

to  the  prize  shares   of  diflerent   persons,  though  several  as  to  the  Several 
share   of  each,  yet   being  payable   in  respect  only   of  one  entire  , . 


fund,  is  only  chargeable  with  one  stamp.  (1)  And  on  the 
authority  of  this  case,  the  Court  of  King's  Bench,  determined, 
in  a  late  case,  that  a  single  stamp  was  sufficient  for  an  agree- 
ment, which  several  persons  had  entered  into  for  a  subscription 
to  one  common  fund,  for  the  purpose  of  constructing  a  dock.  (2) 
In  the  case  of  Jones  v.  Sandys,  (3)  the  question  was,  whether  a 
bond,  in  the  condition  of  which  a  mortgage-deed  was  mentioned, 
ought  to  have  had  two  stamps:  and  the  Court  held,  that  it  was 
not  necessary;  and  in  delivering  their  opinion,  they  mentioned 
the  cases  of  bargain  and  sale,  lease  and  release,  mortgage  with 
covenant  to  pay  the  money,  as  constantly  charged  \vith  only  the 
single  duty. 

But  the  rule  is  different,  where  the  instrument  includes  in 
effect  several  transactions,  and  the  subject-matter  is  distinct  as  to 
the  several  parties.  Thus,  an  instrument,  containing  the  admis- 
sions of  several  persons  to  a  corporation,  requires  as  many  stamps 
as  there  are  admissions.  This  was  determined  in  the  case  of  the  Admission  of 
King  V.  Reeks,  (4)  where,  in  a  trial  at  bar,  on  an  information  in  burgesses, 
the  nature  of  a  quo  warranto^  to  prove  the  admission  of  the  de- 
fendant, a  paper  was  produced,  containing  the  admissions  of  the 
defendant  and  four  other  burgesses,  which  paper  was  stamped 
only  with  one  stamp:  it  was  then  objected,  on  the  part  of  the 
Court,  that  this  paper,  iiaving  only  a  single  stamp,  could  not  be 
admitted  to  be  read  in  evidence;  for  the  statute  9  &  10  W.  3. 
c.  25.  s.  27.  enacts,  that  a  certain  duty  shall  be  paid  for  every 
piece  of  parchment  or  paper,  upon  which  any  admission  into  any 
corporation,  &c.  shall  be  written:  and  the  59lh  section  enacts, 
that  "  if  any  instrument  or  writing,  by  that  act  intended  to  be 
stamped,  shall,  contrary  to  the  intent  thereof,  be  written  or  en- 
grossed by  any  person  whatsoever  (not  being  a  known  officer, 
who  in  respect  of  any  public  office  or  employment  shall  be  entitled 
to  write  the  same,)  upon  parchment  or  paper  not  stamped  accord- 
ing to  that  act,  then  there  shall  be  paid,  over  and  above  the 
duty  for  such  instrument,  ten  pounds;  and  that  no  such  instru- 
ct) Baker  V.  Jardine,  12  East,  235.  (3)  Barnes,  463. 
n.  {I,).  (4)  2Ld.  Raym.  1445.  2  Str.  716. 
(2)   Davis  V.  Williams,   13  East,  232.     S.  C. 


510  Of  Stamping,  [Ch.    9. 

Bevcrnl  ment  shall  be    pleaded  or  given  in   evidence  in  any   court,  or  ad- 

"  °"''^^' milted  in  any  court  to  be  good  or  available  in    law  or  equity,  until 

as  well  the  said  duly  as  ten  pounds  should  be  paid,  &c.,  and  a 
receipt  produced  for  the  same,"  &c.:  under  this  section  of  the  act 
it  was  insisted,  that  the  instrument  in  question,  being  an  ad- 
mission of  five  persons  to  be  burgesses,  ought  to  have  five 
stamps;  tliat  it  could  not  be  good  for  any  one  of  the  five  on 
account  of  the  uncertainty,  or  at  most  it  could  be  good  only  for 
one;  if  it  was  good  for  any,  it  must  be  for  the  first  named;  but 
the  defendant  was  the  third  name,  and  therefore  it  could  not  be 
good  for  him.  And  of  tl.'is  opinion,  as  the  rc|)ort  adds,  was  the 
whole  Court,  after  argument.  The  counsel  for  the  defendant 
then  offcM'ed  in  evidence  four  other  distinct  pieces  of  parchment, 
bearing  date  on  the  day  mentioned  in  the  information,  each  of 
them  being  duly  stamped,  which  imported  the  several  admissions 
and  swearings  of  the  four  burgesses  last  named  in  the  other 
parchment,  and  one  of  them  imported  the  particular  swearing 
and  admission  of  the  defendant.  But  the  witness,  who  pro- 
duced these  pieces  of  parchment,  proved,  that  the  entries  were 
not  made  upon  them,  nor  were  any  of  them  stamped,  till  near 
two  months  after  the  day  on  which  they  bore  date;  and,  an  objec- 
tion being  taken  on  this  ground  to  the  single  instrument,  which 
stated  that  the  defendant  alone  was  admitted  and  sworn,  the 
Court  was  clearly  of  opinion,  that  it  could  not  be  admitted  in 
evidence;  for  by  the  act  the  admission  is  to  be  on  paper  or 
parchment  stamped  at  the  time;  otherwise  it  is  not  to  be  given 
in  evidence  till  the  penalty  is  paid,  and  certificate  thereof  pro- 
duced. 

In  the  case  of  The  King  v.  Reeks,  which  has  been  just  men- 
tioned, the  instrument  first  offered  in  evidence  purported  to  con- 
tain the  admissions  of  five  burgesses,  and  it  does  not  appear, 
that  the  single  stamp,  which  was  impressed,  applied  more  to 
the  defendant's  name  than  to  any  of  the  others.  This  circum- 
stance distinguishes  that  case  from  two  others  lately  decided, 
Powell  v.  Edmunds,  (1)  and  Doe,  on  the  demise  of  Sir  Joseph 
Copley,  V.  Day,  (2)  in  which  a  paper    containing    contracts  by 

(1)  12  East,  6.  182.      Perry    v.  Bouchier,    4     Campb- 

(2)  13  East,   241.      See   also   Wad-     80. 
dington   v.    Francis,    5   Esp,  N.    P.    C. 


Ch.  9.]     as  a  Requisite  of  Written  Instruments.  51 1 

several   persons   relative  to   different  things,  thongli  stamped   with  Alteration  of 

,         ^  1-    J      J  .       I  J  -1  .instrument. 

a  Single  stamp,  was   adjudged  to    be   good   evidence  as   to  one  of 

the  contracting  parties,  because  the  stamp  appeared  to  be  ap- 
plicable exclusively  to  his  name.  In  the  first  case,  the  paper 
contained  an  agreement,  signed  by  the  defendant,  for  a  lot  of 
timber,  and  underneath  a  second  agreement,  with  another  person 
for  a  different  lot;  this  last  had  pencil  marks  drawn  across  it, 
as  if  for  the  purpose  of  striking  it  out;  the  stamp  was  affixed 
on  that  part  of  the  paper  on  which  the  defendant's  agreement 
was  written,  and  below  was  the  stamp-officer's  receipt  for  a  pe- 
nalty "for  making  the  above  t^greement."  An  objection  was 
taken  on  the  ground  of  there  being  a  single  stamp,  which  was 
over-ruled  at  the  trial,  and  afterwards  by  the  Court  of  King's 
Bench.  In  the  other  case,  (I)  the  paper  contained  a  variety  of 
independent  lettings  of  land  betwen  the  landlord  and  a  number 
of  his  tenants,  one  of  whom  was  the  defendant;  the  stamp  was 
affixed  opposite  the  defendant's  name,  and  it  appeared  from  the 
receipt  of  the  stamp-officer,  that  the  money  of  affixing  it  was 
paid  after  the  commencement  of  the  action  and  only  a  short 
time  before  the  trial;  the  instrument  also  appeared,  when  pro- 
duced in  evidence,  to  be  cancelled  with  black-lead  pencil  marks 
as  to  every  name  except  that  of  the  defendant,  and  it  was  not 
proved,  that  the  instrument  was  not  so  cancelled  at  the  time 
when  the  stamp  was  affixed.  Under  these  circumstances  the 
Court  held,  that  the  single  stamp  was  intended  to  be  applied 
to  the  contract  with  the  defendant,  and  consequently  that  the 
paper  was  admissible.  "  If,  indeed,"  said  Lord  Ellenborough 
C.  J.,  "the  instrument  had  been  required  to  substantiate  the 
several  contracts  with  the  different  tenants,  no  doubt  there  should 
have  been  a  stamp  affixed  to  each,  although  the  same  terms  of 
agreement  applied  to  all:  one  stamp  has  been  only  held  to  be  suf- 
ficient upon  an  instrument  affecting  the  separate  interests  of 
several,  where  there  has  been  a  community  of  the  same  subject- 
matter  as  to  all  the  parties.  But  here  it  sufficiently  appears  from 
the  circumstances  of  the  case,  that  the  stamp  was  meant  to  be 
applied  to  the  defendant's  signature." 

When  a  stamped    instrument  has  issued  as  a  valid  security,  and  ^{[''^f"""  ^^ 

change  or 
note. 

(1)  13  East,  241.     See  also  VVaddington  v.  Francis,  5  Esp.  N.  P.  C.  182. 


Di::i 


Of  Stamping,  [Ch.  9. 


Alteration  of  |jcen  oncc  Lisod  for  one  purpose,  it  cannot  be  altered  without  a 
new  Stamp.  11  the  parties  aherwards  vary  their  original  inten- 
tion, and  make  a  new  instrument  didereni  from  that  which  they 
originally  contemplated,  a  new  stamp  will  be  necessary.  (1)  If 
a  bill  of  exchange,  for  example,  has  been  once  effected,  and  has 
issued  in  a  perfect  form  from  the  drawer  to  the  acceptor,  by 
whom  it  was  returned  with  his  acce[)tance  to  the  drawer,  it  can- 
not be  altered  without  being  rc-stamped.  Thus,  in  the  case 
of  Bowman  v.  Nichol  (2),  where  a  bill  of  exchange  had  been 
drawn  on  a  proper  stamp,  payable  21  days  after  date,  and, 
while  it  continued  in  the  hands  of  the  drawer,  was  altered  with 
the  consent  of  the  acceptor,  to  be  made  payable  51  days  after 
date,  and  was  again  altered  to  21  days  after  date,  subsequently 
to  the  time  of  becoming  payable  according  to  its  oiiginal  form; 
the  Court  of  King's  Bench  held,  that  at  the  time  when  the  last 
alteration  was  made,  the  operation  of  the  bill,  as  it  originally 
stood  J  was  quite  spent;  that  it  was  a  new  and  distinct  trans- 
action between  the  parties;  and  that  there  ought  to  have  been  a 
new  stamp.  So,  where  a  promissory  note,  payable  by  the  de- 
fendant to  the  plaintiff  or  order  (3),  was  originally  expressed  to 
be  for  value  received,  but,  on  the  day  after  it  had  been  signed 
and  delivered  by  the  defendant  to  the  plaintiff,  was  with  the 
consent  of  the  parties  altered  by  the  addition  of  the  words  "  for 
the  good-will  of  a  lease  and  trade."  the  Court  held,  that  the 
alteration  was  a  material  one,  because  it  was  evidence  of  a  fact, 
which,  if  necessary  to  be  enquired  into,  must  otherwise  have 
been  proved  by  different  evidence,  and  also  because  it  pointed 
out  the  particular  consideration  for  the  note,  and  put  the  holder 
upon  enquiring,  whether  that  consideration  had  passed;  a  new 
stamp  was  therefore  necessary,  for  the  want  of  which  the  note 
could  not  be  received  in  evidence. 

A  person  having  drawn  a  bill  payable  to  his  own  order,  in- 
dorsed it  to  A.,  who  indorsed  it  to  B.,  and,  the  bill  being  dis- 
honoured,   paid   the   amount  to  B.;  on   which  B.   struck  out  his 


(1)  15  East,  41S.  Hastings,    4    Campb.    223.      1    Starkie, 

(2)  5  T.  R.  537.  See  also  Master  N.  P.  C.  215.  S  C.  Outwaite  v. 
V.  Miller,  4  T.  R.  320.  2  H.  BlacU.  Luntley,  4  Campb.  179.  Matson  v. 
141.  S.  C.  Cardwell  v.  Martin,  1  Booth,  5  Maule  &  Selw.  226.  See 
Campb.  79.;  9  East,  190,  S.  C.     Bathe  Bayley  on  Bill,  4th  edit.   91. 

V.   Taylor,    15   East    412.     Walton    v.  (3)  Kniil  v.  Williams,  10  East,  431. 


Cli.  9.]     as  a  Requisite  of  Wrilicn  Instruments.  513 

own  indorsement  and    A. 's  indorsement,  and    returned   the   bill   lo  Alteration  of 

the  drawer;  the    drawer  (hen    indorsed    it,    with  the   indorsements 

struck  out,  to  the  jilalntifT,  without  a  new  stamp  ;  the  Court  of 
King's  Bench  held,  that  the  plaintiff  was  entitled  to  recover  against 
the  acceptor;  the  bill  not  having  discharged  its  functions,  when 
given  to  the  plaintiff.  (1) 

An  alteration  of  the  date,  (2)  or  of  the  time  for  which  a  bill  has 
to  run,  (3)  made  with  the  consent  of  the  drawer  and  the  acceptor, 
before  the  bill  is  negotiated,  will  not  render  a  new  stamp  neces- 
sary; but  it  will  be  incumbent  on  the  party,  who  sues  upon  the  bill, 
to  prove  the  time  of  making  the  alteration.  An  alteration  of  the 
date  in  an  accommodation  bill,  made  previously  to  its  being  issued 
to  the  first  bona  Jide  holder  for  a  valuable  consideration,  will  not 
require  a  fresh  stamp;  for,  until  it  is  so  issued,  it  is  not  a  valid 
security  for  money;  in  other  words,  it  dees  not  issue  as  a  legal 
security  until  it  passes  the  hands  of  a  person  who  can  make  a 
valid  claim  upon  it.  (4) 

It  is  provided  by  the  13th  section  of  the  stal.  35  G.  3.  c.  63.,  Alteration  of 
relating  to  stamp-duties  on  sea-insurances,  "  that  nothing  in  ^raifce.  '"' 
that  act  shall  be  construed  to  extend  to  prohibit  the  making  of 
any  alteration,  which  may  lawfully  be  made  in  the  terms  or  con- 
ditions of  any  policy  of  insurance  duly  stamped,  after  the  same 
shall  have  been  underwritten,  or  to  require  any  additional  stamp- 
duty  by  reason  of  such  alteration,  so  that  such  alteration  be  made 
before  notice  of  the  determination  of  the  risk  originally  insured, 
(5)  and  the  premium  or  consideration  originally  paid  or  con- 
tracted for  exceed  the  rate  of  10  shillings  per  cent,  on  the  sum 
insured,  and  so  that  the  thing  insured  shall  remain  the  property 
of  the  san)e  persons,  and  so  that  such  alteration  shall  not  prolong 
the  term  insured  beyond  the  period  allowed  by  this  act,  and  so  that 
no  additional  or  further  sum  shall  be  insured  by  means  of  such 
alteration." 

(1)  Callow  V.  Lawrence,  3  Maule   &         (4)     Downs    v     Richardson,  5  Barn. 
Selw.  95.  &  Aid   674. 

(2)  Johnson    v.    D.    of  Marlborough,.        (5)   Uamstroin    v.  Bell,   5   Maule   & 
2  Starkie,  N.  P.  C.  313.  Selw.  270. 

(3)  Kennerley  v.  Nash,  I  Starkie,  N. 
P.  C.  452. 

Vol.  T.  65 


614  Of  Stamping,  [CIj.  9. 

Alteration  of        j,j  ([^q  case  of  Kensin";lon  v.  Inclis,  (1)  where  ihe   policy  was 

instrument.  ,        ^  ^    ,  .  ,  .  ...        , 

.  "  on  goods  and   specie  on  board  of  ship  or  ships  saihng  between 

us^'/S'o/     ^^^^  Is^  o^  October,  1799,  and   the  1st  of  June,  1800,   being  the 
icilins.  property  which   should   first  sail   to   a  certain   amount,   and   upon 

the  vessels  carrying  the  goods,"  and  a  memorandum  was  written 
on  the  policy  and  subscribed  by  the  defendant  on  the  1 1th  of  June, 
1800,  before  any  notice  of  the  determination  of  the  risk  had  been 
received,  b\  which  memorandum  it  was  agreed  to  extend  the  time 
of  sailing  to  the  1st  of  August  following,  the  Court  of  King's 
Bench  in  this  case  held,  that  the  memorandum  did  not  require  a 
stamp;  for  although  the  lime  of  sailing  was  extended,  yet  no 
new  subject  of  insurance  was  introduced  by  the  memorandunij  but 
the  object  insured  continued  the  same. 

2.  Alteration  In  another  case,  (2)  which  occurred  upon  the  same  clause, 
Tnsurld"^^'  ^  where  the  policy  was  originally  "  on  ship  and  outjit,^^  from  Lon- 
don to  the  South  Seas,  but,  after  the  sailing  of  the  ship,  was 
altered  by  consent  of  the  underwriters,  and  declared  to  be  "  on 
the  ship  and  goods^''^  instead  of  ship  and  outfit,  the  Court  deter- 
mined, that,  as  the  outfit,  originally  insured,  was  essentially  '^dif- 
ferent from  goods,  which  were  afterwards  made  the  subject  of 
insurance,  the  policy  in  its  altered  state  required  an  additional 
stamp.  '•  The  question  is,"  said  Lord  Ellenborough  C.  J.,  in 
delivering  the  judgment  of  the  Court,  "  whether  that  part  of  the 
provision,  which  requires,  that  '  the  thing  insured  shall  remain 
the  property  of  the  same  person,'  has  been  in  this  case  complied 
with.  The  words,  '  the  thing  Insured  shall  remain  the  pro- 
perty,' appear  properly  to  require  and  apply  to  one  identical  and 
continued  subject-matter  of  insurance;  such  subject-matter  all 
along  remaining  the  property  of  the  same  proprietor,  and  to  be 
ill  suited  to  a  case  like  the  present,  where  the  thing  last  insured 
is  not  only  in  fact,  but  in  name  and  kind,  as  a  specific  subject  of 
insurance,  essentially  different  from  the  thing  first  insured,  and 
which  begins  also  to  have  an  existence  at  a  different  and  much 
later    period    llian  the   oiher,    and   when   the    thing   first    insured 

(1)  8  East,  273.  Hubbard  v.  Jack-  £  East,  351.  Hubbard  v.  Jackson,  4 
SOD,  4  Taunt.  169.  Ridsdale  v.  Shed-  Taunt.  169-  The  cases  on  this  subject 
den,  4  Campb.  107.  are  collected  in  Parke's   Treatise  on  In- 

(2)  Hill   V.    PaUen,  8     East,    373.     surances,  p.  46.,  last  edit. 
1  Campb.  72.  S.  C    French   v.    Pattenj 


Ch.  9.]       as  a  Requisite  of  IVritien  Instruments.  516 

scarcely  or  in   a  smull   degree  only,  remains  or   continues   to  oxibl  ^^|.\7J',lIent°'' 
at  all."'  — 


A    memorandum    indorsed    upon    a  policy    waiving    the  war-  f„  JI;,':^^^^*; J °} 
ranty    of   sea-worlhiness,   does    not    require    a    new    stamp.  (1)  sea-icorthi- 
And  Mr.  Justice    Bayley  comj)ared    the  case  to  that  of  a  war-  ''"*' 
ranty  to  sail  within   a  certain  time,  which    may   be  altered  by  an 
unstamped    memorandum,  even   afier    the   period   when  the  con- 
dition has  terminated,    without  affecting  the  continuance   of   the 
policy. 

Where    a    policy   has  been  executed    Iti  the  common   printed  "*;  S-JaterMi 

I  •'  _  _  ,  '  ,      nlteralio!!. 

form,  without  any  specific  subject  of  insurance  expressed  in 
writing,  and  the  subject-matter  is  afterwards  inserted,  the  as- 
sured cannot  recover  against  those  underwriters  who  have  not 
signed  the  policy  after  the  addition;  for  a  material  alteration  is 
introduced  with  respect  to  such  of  the  underwriters  as  have  not 
assented.  (2)  It  has  been  determined  by  several  cases,  that  a 
material  alteration  in  a  material  part  of  a  policy  of  insurance, 
made  by  one  of  the  parties  interested,  without  the  consent  of  all 
parties,  destroys  the  policy  as  to  those  underwriters  who  have  not 
assented  to  the  alteration,  (o)  Even  if  all  the  parties  assent  to 
an  alteration,  and  the  alteration  is  such  as  to  make  the  policy  void 
for  want  of  a  new  s(amp,  the  policy  cannot  he  enforced  in  its 
original  form.  (4)  This  is  a  general  principle,  and  applies  equally 
to  bills  of  exchange,  promissory  notes,  and  other  negotiable  in- 
struments. An  iumiaterial  alteration  in  a  })olicy  of  insurance, 
made  by  the  party  insured,  (as,  an  alteration  by  the  insertion  of 
words,  which  add  nothing  to  what  was  expressed  before  in  sub- 
stance, and  do  not  in  any  degree  vary  the  legal  effect  of  the 
policy  (5)  will  not  vacate  the  policy,  even  as  against  a  party  who 
refused  his  consent  to  the  alteration. 

Where   an   alteration    is   made   in  an   instrument,  with  the  con-  Alterations  to 

r     ,,  ■         ■  ,  -11  1       correct  mis- 

sent  01  all    parties,  ui   order  to  coirect  a    nustake,  and   to  make  takes. 

(1)  Weir   V.    Aberdeen,    2    Barn.  &  Molt,  N.  P.  C     3.31.  S.  C.  [Campbell  v. 
Aid.  325.  Christie,  2  Starkie,  N.  P.  C.  6-1. 

(2)  Langhorn  v.    Cologon,    4   Taunt.  (4)   Frencli  v.  Patten,  9  East,  351. 
330.  (5)  Sanderson  v.  Symond.s,   1    Brod. 

(3)  Fairlie  v.  Christie,  7  Taunt.  416.  &  Bing.  426. 


516  Of  Siam/nng,  [Ch.  9. 

ihe  instrument  consistent  vviih  the  original    intention  of  the  parlies, 

there    it   has   been   held,    that    a  fresh    stamp    is  not  necessary. 

Bill  of  ex-       Thus  in   the  case  of  Kershaw  v.  Cox,  (I)  where  a  bill  had   been 
change.  ^    ' 

drawn    payable   to    the   defendant,  but   not  payable   to   order,  the 

defendant  on  the  day  after  the  bill  was  drawn,  indorsed  it  over 
to  the  plaintiff,  without  adverting  to  the  omission  of  the  words 
"  or  order;"  on  the  same  day  the  plaintiff  returned  it  to  the 
defendant,  to  get  the  omission  rectified,  and  the  drawer  then  in- 
serted the  words;  here,  there  was  strong  evidence  to  show,  that 
the  omission  was  by  mislak:^  for  tlie  bill  was  intended  to  be  ne- 
gotiable, and  as  sucli  immediately  indorsed,  as  if  it  had  been 
drawn  payable  to  order,  and  as  soon  as  the  omission  was  dis- 
covered, it  was  rectified  by  the  proper  parties:  the  learned  Judge, 
therefore,  who  tried  the  cause,  left  it  to  the  jury  to  consider,  wheth- 
er the  words,  afterwards  added,  had  been  originally  intended  to 
have  been  inserted,  but  were  omitted  by  mistake;  and  the  jury 
finding  this  to  be  the  case,  it  was  ruled,  that  a  fresh  stamp  was 
not  required.  The  point  was  afterwards  brought  before  the  Court  of 
King's  Bench,  on  a  motion  lo  enter  a  nonsuit,  and  the  alteration 
was  adjudged  to  be  allowable  under  the  stamp  acts;  having  been 
made  merely  for  the  purpose  of  rectifying  a  mistake  in  drawing 
the  bill  contrary  to  the  intention  of  the  parties. 

Bill.  In  another    case,  which    occurs  upon  this   subject,    where  an 

action  was  brought  against  the  defendant  as  acceptor  of  a  bill  of 
exchange,  (2)  it  appeared,  that  the  defendant  and  another  per- 
son being  indebted  to  the  plaintiff,  agreed  to  give  him  a  bill  of 
exchange,  to  be  drawn  by  the  one  and  accepted  by  the  other 
(the  defendant:)  instead  of  this,  they  sent  him  a  promissory  note, 
made  by  the  one  and  indorsed  by  the  other,  which  the  plaintiff 
immediately  returned,  that  it  might  be  altered  into  a  bill  of  ex- 
change according  to  the  agreement,  and  the  alteration  was  ac- 
cordingly made;  an  objection  was  taken,  on  the  ground  that  the 
instrument  required  a  fresh  stamp;  but  Lord  Ellenborough, 
C.    J.,  ruled,  that  the   stamp  impressed   was   suflicient   to  render 

(I)  3    Esp.    N     r.     C.    246.     before  1    Mauiu    ii  Selvv     217.     Robinson    v. 

Le   Blanc   J.,  cited    10  East,    135.,  and  Tobiii,  1  Starkio,  N.  P.  C  336. 
15  East,  417.     Jacobs  v.   Hart,  2    Star-         (2)   Webber  v.  Maddocks,  3  Campb. 

kie,  N.  P.  C.  45.     Robinson  v.  Touray,  1 


Ch.  i.».J       us  a  Rcquisiie  (jj  iVritlen  Insirumenis.  b\l 

the  instrument  available,  since  it  had  not  been  negotiated  as  a 
promissory  note,  and  the  alteration  niiglit  be  treated  as  the 
correction  of  a  mistake,  according  to  the  terms  of  the  original 
agreement. 

The  case  of  Cole  v.  Parkin  (1)  affords  another  instance  of  the  ^'."  ^^^'■^^^  "^ 
rectification  of  a  mistake,  in  a  bill  of  sale  of  a  ship.  The  bill  of 
sale,  m  reciting  the  certificate  of  registry,  staled  Guernsey  as  the 
port  where  the  certificate  was  granted,  instead  of  Weymoudi, 
and  in  this  stale  was  executed;  but  the  mistake,  being  afterwards 
discovered,  was  rectified  with  the  consent  of  all  parties,  and  the 
deed  delivered  afresh:  the  question  was,  whether  this  second 
delivery  made  a  new  stamp  necessary.  Lord  EUenborough  C.  J., 
in  delivering  the  judgment  of  the  Court,  referred  to  statute 
26  G.  3.  c.  60.  s.  17.,  which  enacts,  that  a  bill  of  sale  of  a  regis- 
tered ship,  which  does  not  truly  and  accurately  recite  the  certi- 
ficate of  registry  in  words  at  length,  shall  be  utterly  null  and 
void  to  all  intents  and  purposes.  "  This  bill  of  sale,  therefore, 
when  first  executed,  was,  from  the  mistake  in  the  recital  of  the 
certificate  of  registry,  to  all  intents  and  purposes  null  and  void; 
it  took  no  effect  whatever  from  its  delivery;  and  the  stamp 
impressed  upon  it  was  wholly  inoperative.  This  defect  arose 
not  from  intention,  but  from  mistake.  The  instrument,  as  first 
executed,  was  not  what  the  parties  meant  to  execute;  and  it  was 
not  in  the  slate  in  which  it  was  at  first  intended  to  be,  till  it  was 
altered.  This  is  not  the  case  of  substituting  a  new  and  second 
contract,  in  the  place  of  a  preceding  effectual  one,  upon  a  change 
of  intention  in  the  parlies;  but  merely  making  the  contract  what 
it  was  originally  intended  to  have  been;  and  in  such  a  case, 
where  the  instrument  upon  its  first  execution  was  void  to  all  in- 
tents and  purposes,  where  its  insufficiency  arose  from  a  mere 
mistake,  where  in  consequence  of  that  mistake  it  was  not  in  the 
state  in  which  it  was  intended  to  have  been,  when  it  was  so  ex- 
ecuted, and  where  upon  its  second  execution  it  is  only  put  into 
that  state  which  was  originally  intended,  we  think  it  is  not  going 
beyond  the  fair  spirit  of  the  stamp-laws  to  hold,  that  upon  such 
second  execution,  being  the  first  which  was  eflectually  operative, 
a  new  stamp  was  not  requisite."     So,  the  mistake  of  an  agent,  in  i'ol'i^}- 

(1)   12    East,   471. 


518 


Of  Stampings 


[Ch.  9. 


Unstamped       cleclaiiijg  lljc   interest   in   llie  margin   of  a    policy   lo  be  on  a  ship 

writini',  for        ,  ,  t     \    \        ■  .•         .\      . 

colliiteral  by  a   uTong  name,  may    be   rectiliod    by   inserting   tlie  true  name, 

P"'"P"^'^^- wiilinut  a  fresh  stamp.  (I) 

Unstamped  Written  instruments   have   been   admitted    in  evidence  without 

instrument,  .  .  ,  i  i  i 

for  collateral     a  Stamp  \n  ccrlam  cases,  when    produced    merely   to  prove  sonne- 
purposes.  thing  collateral,  and   not   for  the   purpose  of  being  enforced    be- 

tween the  parlies,  and  when  it  was  not  material  to  consider 
whether  the  instruments  were  good  or  available  in  law.  In  the 
case  of  Holland  q.  t.  v.  Diiffiii,  (2)  which  was  an  action  to  re- 
cover several  sums  of  money,  forfeited  by  insuring  tickets  in  the 
lottery,  contrary  to  the  statute  22  G.  3.  c.  47.  s.  13.,  Lord 
Kenyon  held,  that  an  instrument,  purporting  to  be  a  policy  of 
insurance,  niight  be  given  in  evidence,  though  not  stamped  as  a 
policy;  for  such  a  contract  is  declared  by  the  act  to  be  illegal 
and  void,  and  could  not  have  been  intended  by  the  legisla'.ure  as 
an  object  of  taxation.  And  in  an  action  of  debt  for  bribery  at 
an  election  under  statute  2  G.  2.  c.  24.  s.  7.  (3)  Lord  Ellen- 
borough  C.  J.  held  that  an  unstamped  promissory  note  pay- 
able to  the  defendant,  which  a  witness  said  he  had  given  for 
the  re-payment  of  money,  received  by  him  as  a  voter  from  the 
defendant  (one  of  the  candidates,)  might  be  admitted  as  evi- 
dence of  the  transaction,  to  corroborate  the  testimony  of  the 
wittiess. 


Unstamped 
receipt. 


An  unstamped  receipt  may  be  shown  to  a  witness  as  a  memo- 
randum, in  order  to  refresh  his  recollection  of  a  fact  there 
stated;  (4)  or  for  the  purpose  of  confirming  his  evidence,  in 
case  the  receipt  itself,  if  stamped,  would  be  admissible  as  con- 
firmation. (5)  An  unstamped  contract,  made  between  commis- 
sioners of  the  navy  and  other  persons,  containing  also  a  direc- 
tion by  the  commissioners  to  their  clerks,  in  consequence  of  the 
contract,  to  issue  certificates  in  a  certain  form,  is  evidence  of  such 
a  direction  having   been   given,  though   not  evidence  of  the  con- 

(1)  Robinson  v.  Touray,  1  Maule  (4)  Rambert  v.  Cohen,  4  Esp.  N.  P. 
&  Selw.  217.  Sawtell  v.  Loudon,  5  C.  213.  Jacob  v.  Lindsay,  1  East, 
Taunt.  359.  460. 

(2)  Peake,  N.  P.  C.  57.  (5)  See   Dover  v.    Maestaer,  5    E«p. 

(3)  Dover   v.    Maestaer,   5    Esp.    iN.  N.  P.  C   92. 
P.  C.  92.     And  see  the  point  in  Pooley's 

case,  on  the  second  trial,  infra,  p.  521. 


Ch.  9.]    as  a  Requisite  of  Wrilien  Instruments.  519 

tract.  (1)     A  written  aereement,  for  which  an  action  of  trover  is  Unstamped 

.  .  .  writing,  for 

brought,   and  wl)ich   is   produced   at   the   trial    by  the  defendant,  collateral 
is   not   inadmissible    in   evidence,   on   account   of  the  want  of  a  P"'"P°3e8. 


stamp.  (2) 

An   unstamped    part  of  an  agreement  is   admissible  on  the  part  Unstamped 

1    •      •  n--  I  •  I  r     I  f       agreement. 

of  the  plauiiin,  as  secondary  evidence  ol  the  agreement,  after 
proof  of  notice  lo  the  defendant  to  produce  the  stamped  part 
which  is  in  his  possession  (3) :  and  there  can  be  no  difference  in 
this  respect,  whether  the  plaintiff  has  specially  declared  upon 
the  agreement,  or  merely  olTers  it  as  evidence  in  the  course  of 
the  cause. 

On  a  question  of  settlement  by  hiring  and  service,  although 
a  general  hiring  cannot  be  presumed  from  the  mere  fact  of 
service,  if  the  service  has  been  performed  under  written  articles 
of  agreement,  which  are  not  admissible  in  evidence  for  the  want 
of  a  proper  stamp,  yet,  where  the  question  is,  whether  the 
service  commenced  after  the  expiration  of  the  articles,  they  may 
be  properly  inspected  for  the  purpose  of  ascertaining  this  col- 
lateral fact,  uheiher  they  would  apply  to  the  subsequent  ser- 
vice. (4) 

In   an   action  for   the  non-delivery  of  goods,  if  the  contract  is  Unstamped 
I    •  1-1  J    •      1       1  1  1  I  •       paper, 

proved    by  parol  evidence,  and   it  should   appear  iliat   the  parties 

made  a  contract  on  unstamped  jiaper,  the  Court  may  inspect  the 
instrument,  to  see  whether  it  applies  to  the  goods,  which  are  the 
subject  of  the  action;  and  if  they  are  not  included  in  the  con- 
tract, the  parol  evidence  would  Le  properly  admitted.  (5)  So, 
in  an  action  for  money  lent,  where  the  plaintiff  proved,  that  he 
had  advanced  the  money  to  the  defendant,  who  gave  him  a  note  •• 
for  the  amount  on  unstamped  paper,  and  the  defence  was,  that 
he  had  been  induced  to  give  the  note  in  a  state  of  intoxica- 
tion, without  having  received  any  part  of  the  money.  Lord 
Ellenborough  C.  J.  held,  that  the  note  might  be  inspected  by  the 


(1)  Medges's  case,  23  Ilowdl  St.  Tr.  JIunn  v.  Godbold,  3  Bing.  294. 

1344.  (4)  R.    V.    Pendleton,  15   East,    449, 

(2)  Scott  V.  Jones,  4  Taunt.  365.  455. 

(3)  Garnons  v.    Swift,  1  Taunt.  507.         (5)    15  East,  465. 
Waller   v.    Ilorsfnll,     1    Campb.     501. 


520  Of  Siamjnng,  [Cli.  9. 

Unstamped       j|,ry^  as   a   Contemporary  writing,  to  prove  or  disprove  the  fraud 

writing,  for        *  ,  i    •      -n-  / 1  \ 

collateral  pur-    imputed  tO  lllC  |)laint iff  (  1 ) . 
poses. 

Ill  prosccii-  A  paper,   |nnporling  to   be   a   bill  of  exchange  or  promissory 

tions  for  for-  .  .....  .11  .  i      , 

„gry  note,  may    be   given  m  evidence,   tnougli   unstamped,    to  support 

an  indictment  for  forgery,  or  for  uttering  with  a  knowledge  of 
the  forgery;  (2)  for  the  stamp  acts  being  revenue  laws,  and  not 
intended  to  affect  the  crime  of  forgery,  cannot  alter  the  law  re 
specting  it;  the  stamp  is  not,  properly  speaking,  any  part  of  the 
instrument,  but  merely  a  mark  impressed  on  the  paper,  to  denote 
the  payment  of  a  duty,  and  is  collateral  to  the  instrument  it- 
self. (3)  And  if  a  person  were  to  be  sued  for  a  penalty,  for 
having  negotiated  an  instrument  without  a  stamp,  there  is  no 
doubt  but  that  the  unstamped  instrument  nught  be  given  in  evi- 
dence, notwithstanding  the  general  prohibitory  words  of  the 
stamp  acts.  (4) 

1.  Pooley's  But  where   the   instrument  is  offered  in   evidence,  as  a  valid 

*^^^^'  available  legal   instrument,  and   is  not   such   from   the   want  of  a 

stamp,  it  cannot  be  admitted,  whether  in  a  criminal  or  civil 
suit.  In  the  case  of  King  v.  Pooley  (6)  the  prisoner  was  in- 
dicted under  the  statute  7  G.  3.  c.  50.  s.  1.,  which  makes  it  a 
capital  felony  for  any  person,  employed  in  receiving  letters,  to 
secrete  any  letter  containing  a  bank  note,  or  any  warrant,  or 
isi  trial.  draft,  ^-c.  for  the  payynent  of  money.     It  appeared   at  the  trial, 

that  the  draft,  contained  in  the  letter,  which  the  prisoner  had 
secreted,  was  drawn  above  ten  miles  from  the  banking-house; 
the  prisoner's  counsel  then  objected,  that,  as  the  draft  was  on 
unstamped  paper,  it  was  not  a  valid  draft  for  the  payment  of 
money,  and  therefore  not  within  the  statute  on  which  the  pri- 
soner was  indicted;  and  they  founded  this  objection  on  the 
statute  3]    G.   3.  c.   25.,  the  fourth    section  of  which    exempts 


(1)  Gregory  v.  Fraser,  S  Campb.  3  Barn.  &  Aid.  5S9.  See  Whitwell  v. 
454.  Dimsdale,  Peake,  N.  P.  C.  168. 

(2)  Hawkeswood's  case,  1783,  1  (3)  See  the  judgment  of  Mr.  Judge 
Leach,  Cr.  C.  292.,  2  East,  P.  C.  Grose,  who  delivered  the  opinion  of 
955.  S.  C.  Lee's  case,  1784,1  Leach,  the  Judges  in  Reculist's  case,  2  Leach, 
Cr.   C.    293,    n.  (a),       Morton's    case,  Cr.  C.  813. 

1795,  2   East,    P.    C.   955.     Reculist's  (4)  Ibid. 

case,     179(5,    2   Leach,     Cr.    C.     811.  (5)  3   Bos.    &    Pull.  311.     Russ    & 

Davies's  case,  1796,  2  East,  P.  C.  95(i.  Ry.  Cr.  C.  R.  12.  S,  C. 


Ch.  9.]     as  a  Requisite  of  Written  Instruments.  521 

from  stamps   only   such  orders  for  tlie    payment  of  money  as  are  Unstamped 

.  ...  •^  r  II  writing,  for 

drawn  on  a   banker  residing;   within   ten    miles  of  the  place   where  collateral 

the  order   is   made;  and  the   nineteenth    section    provides  that  no  P*^*"?"^^^- 

bill,  note,  draft,  &c.  shall  be  pleaded  or  given  in  evidence  in  any 
court,  or  admitted  in  any  court  to  be  good,  useful,  or  available 
in  law  or  equity,  unless  they  are  written  on  paper  duly  stamped. 
The  evidence  was  admitted;  the  prisoner  convicted:  and  the  point 
reserved.  The  case  was  afterwards  argued  before  the  Judges  in 
the  Exchequer  chamber;  when  the  objection,  taken  on  the  part  of 
the  prisoner,  was,  first,  that  which  has  been  stated,  namely,  that 
the  draft  in  question  was  not  a  draft  for  the  payment  of  money, 
within  the  meaning  of  the  stat.  7  G.  3.  c.  50.  s.  1.;  and,  secondly, 
that  the  indictment,  which  averred,  that//ie  draft  wasin  force  at  the 
time  of  the  secreting.,  had  not  been  proved,  as  from  the  want  of  a  stamp 
the  draft  had  never  been  available.  All  the  judges  held  that  the 
conviction  was  wrong  ;  on  the  ground  that  the  draft,  not  being 
stamped,  was  of  no  value  and  not  available,  and  therefore  not  a 
draft  within  the  act. 

The  prisoner  was  afterwards  tried  on  the  second  section  of  the  2d  trial. 
same  act,  which  makes  it  a  capital  offence  for  any  person  to  rob  any 
mail  of  a  letter  or  packet,  or  to  steal  or  take  any  letter  from  any  mail^ 
or  from  any  place  for  the  receipt  of  letters,  &c.  (1)  It  was  objec- 
ted at  the  second  trial,  that  the  draft,  before  mentioned,  being  on 
unstamped  paper,  could  not  be  received  in  evidence  as  a  medium  to 
show  that  the  prisoner  had  stolen  the  letter;  but  the  Court  over- 
ruled the  objection,  being  of  opinion,  that  the  draft,  though  un- 
stamped, might  be  admitted  in  evidence  for  collateral  purposes, 
though  not  for  the  purpose  of  recovering  the  money  mentioned  in 
it,  and  the  evidence  was  accordingly  received.  Here  the  paper 
was  not  offered  in  evidence,  as  it  was  on  the  former  trial,  as  a  draft 
for  the  payment  of  money,  but  merely  as  a  paper  contained  in  the 
letter,  and  the  fact  of  the  prisoner  having  this  paper  in  his  posses- 
sion was  evidence  against  him  of  his  having  stolen  the  letter  in 
which  it  was  contained. 

An  objection,   similar  to  that  which   was    taken  on  the  former  ^'  ^'"^on's 
•'  '  caso. 

(1)  3  Bos.  &  Pull.  815.     And  this  part  of  the  case  is  reported  in  I  East,  PI.  C, 
addenda,  xvii. 

Vol.  I.  66 


522 


Of  Stamping, 


[Ch.  9. 


Unsiamped      trial  in  the  last  case,  was   again  taken  in  the  case  of  The  King  v. 
collateral         Gillson.  (1)      The  indictment  was  for  feloniously   setting  fire  to  a 

purposes. certain  house  with  intent  to  defraud  an  insurance  company:  at  the 

trial,  a  policy  of  insurance  was  given  in  evidence  on  the  part  of  the 
prosecution,  by  which  the  prisoner's  goods,  in  a  house  there  descri- 
bed, were  insured  against  fire,  and  upon  this  policy  a  memorandum 
was  indorsed,  stating,  that  the  goods  insured  had  been  removed 
from  the  house  described  in  the  policy,  to  another  house  mentioned 
in  the  memorandum,  in  which  last-mentioned  house  the  prisoner 
was  charged  with  having  committed  the  felony.  The  policy  was 
properly  stamped,  but  the  memorandum  had  no  stamp  ;  and  the 
objection  taken  for  the  prisoner  was,  that,  in  support  of  the  charge, 
it  was  essentially  necessary'to  show,  there  subsisted  a  legally  effec- 
tive contract^  and  that,  by  the  express  provision  of  the  stamp-acts, 
the  memorandum  in  question,  not  being  stamped,  could  not  be 
given  in  evidence,  or  be  good  or  available  in  any  manner  whatever; 
and  a  distinction  was  drawn  between  this  case  and  that  above 
mentioned,  where  an  unstamped  forged  instrument  was  admitted 
in  evidence  againstjhe  party  charged  with  having  forged  it,  or  with 
uttering  it  knowing  it  to  be  forged.  The  point  was  reserved,  and 
argued  in  the  Exchequer  Chamber:  and  judgment  was  afterwards 
given  at  the  Old  Bailey,  that  the  prisoner  should  be  discharged. 

3.  Hall's  case.  Qn  a  prosecution  for  embezzling  notes,  which  the  prisoner  had 
received  as  clerk  for  his  employer,  a  written  paper  given  by  the 
prisoner  as  a  receipt  of  the  notes  in  question,  and  purporting  to  be 
such,  is  not  admissible  as  a  receipt,  unless  duly  stamped.  (2) 

8umed  "^when.      "^  regular  Stamp  may   be   presumed  in   certain  cases.     If  an 
agreement  is  in  the  possession  of  a  party  to  the   suit,   who   re- 
fuses to  produce  it  after  a  notice,  the  other  party  may  give  in 
evidence    a  copy    of    the  agreement,   without    proving   that    the 
In  possession    Original  was   duly  stamped;  the   party   who   has    the    original    in 
of  adverse        j^jg   possession  may  prove  the  negative.  (3)      If  an  instrument, 


(1)  1  Taunt.  25.  Russ.  &  Ry.  Cr.  C.  (2)  R.  v.  Hall,  Ry.  &  Mo.  Cr.  C.  R. 

R.  138.  S.    C.     Five   Judges    were   for  67. 

the  reception  of  the  evidence:  six  Judges  (3)  Crisp  v.  .Anderson,  1    Starkie,  N. 

contra.  P.  C.  35. 


Ch.  9.]      as  a  Requisite  of  Written  Instruments.  623 

which  ought  to  be  stamped,  is  proved  to  have  been  lost,  parol  Lost  instru- 
evidence  of  its  contents  may  be  admitted  without  "proof  of  the  ™°° ' 
stamp  being  regular,  where  it  can  be  presumed,  from  the  circum- 
stances of  the  case,  that  the  instrument  was  duly  stamped.  (1) 
In  the  latest  case  upon  this  point,  on  a  question  of  settlement 
between  two  parishes  (2)  it  appeared,  that  an  indenture  of 
apprenticeship,  which  had  been  regularly  executed  thirty  years 
before,  was  delivered  to  the  apprentice  at  the  end  of  the  term, 
and  lost;  that  a  premium  had  been  paid  with  the  apprentice; 
and  further,  that  the  parish,  in  which  he  had  served  under  the 
indenture,  had  for  many  years  treated  him  as  one  of  their 
parishioners;  on  the  other  side,  it  was  proved  by  the  deputy- 
register  and  comptroller  of  the  apprentice  duties,  that  it  did 
not  appear  that  such  an  indenture  had  been  stamped  with  the 
premium  stamp,  or  enrolled,  from  the  time  of  the  date  to  the 
time  of  the  trial  of  the  appeal;  but  the  Court  of  King's  Bench 
were  of  opinion,  that  the  Court  below  were  right  in  presuming, 
that  the  indenture  had  been  properly  stamped.  "  The  question 
before  the  Justices,"  said  Lord  Ellenborough,  "  was,  whether 
the  presumption,  that  all  was  rightly  done  after  thelapse^of  so 
many  years,  was  sufticienily  rebutted  by  the  negative  evidence 
of  the  officer;  they  thought  not,  and  we  cannot  say  that 
they  have  done  wrong;  for  tlie  presumption  of  law  is  to  be 
favored,  and  against  the  negative  evidence  they  may  have 
set  the  possibility  of  an  irregularity  in  the  returns  made  to  the 
office." 

If  an  action  cannot  be  brought  [upon  an  agreement,  until  it  is  Defect  of 
stamped,  it  must  be  stamped  before  the  commencement  of  the  cured.' 
action:  but  if  it  is  an  agreement  which  may  be  stamped  on 
the  payment  of  a  penally,  then  it  may  be  stamped  during  the 
action.  (3)  In  some  cases  the  legislature  has  declared,  that  the 
paper  cannot  be  stamped  after  it  has  been  written,  as  in  stat. 
35  G.  3.  c.  63.  s.  14.  concerning  sea-insurances  (4,)  and  in 
slat.  31   G.   3.    c.    25.  s.  19.   concerning  bills   of  exchange,  pro- 

(1)  R.    V.   East  Knoyle,    Burr.    set.     v.    Bishop  ^ of  Chester,  8   Mod.    365.    1 
Case,    151.     1    Bott.  547.  S.   C.    R.    v.     Stra.  624,  S.  C. 

Badby,  I  Bott.  549.  S.  P.  (4)  Rodereck    v.   Hovil,   3  Campb. 

(2)  R.  V.  Long  Buckby,  7  East,  45.        103. 

(3)  9  Ves.  252.     11    Ves.    595.  11. 


524 


Of  Siomprng, 


[Ch.  9. 


Agreement,  niissory  notes,  &c.*  In  other  cases  it  is  declared,  that  a  penally 
shall  be  incurred  by  writing  on  unstan)ped  paper;  and  that  the 
instrument  shall  not  be  available  in  evidence,  until  the  duty  and 
penalty  are  first  paid,  and  a  receipt  for  them  produced,  and 
until  the  instrument  is  marked  with  a  proper  stamp.  (1)  Here 
the  defect  may  be  cured  by  having  a  proper  stamp  affixed,  which 
may  be  done  by  jiaying  the  duty,  together  with  the  penalty  for 
not  having  the  instrument  stamped  within  the  lime  limited.  (2) 
In  other  cases  the  legislature  only  imposes  a  penalty  for  not 
having  the  instrument  duly  stamped;  and  in  these,  though  the 
party  would  be  liable  to  a  penalty,  yet  the  paper  may  be  given 
in  evidence,  though  unstamped.  (3)  If  the  defendant  has  paid 
money  into  court,  in  an  action  on  a  bill  of  exchange,  (4)  or  has 
by  his  plea  admitted  letters  of  administration  (of  which  the 
plaintiff,  as  administrator,  made  |)rofort)  (5),  he  cannot  object 
to  the  stamp  as  insufficient.  The  payment  of  money  in  the 
one  case,  and  the  plea  in  the  other,  admits  the  validity  of  the 
instrument. 


Agreements, 
when  to  be 
stamped. 


The  Stat.  48  O.  3.  c.  149.  (6),  one  of  the  principal  acts  relating 
to  stamp  duties,  enacts,  that  every  agreement,  minute,  or  memo- 
randum of  agreement,  (not  particularly  exempted,)  that  is  made 
in  England  under  hand  only,  or  made  in  Scotland  without  any 
clause  of  registration,  is  liable  to  a  stamp  in  proportion  to  the 
number  of  words  contained,  when  the  siubject-matter  is  of  the 
value  of  20Z.    or   upwards,  whether   the   same  shall  be   only  evi- 

(1)  St.  5  &.  6  VV.  &  M.  c.  21.  B.  (4)  Israel  v.  Benjamin,  3  Campb.  40. 
11.  12  Ann.  st.  2.  c.  9.  s.  25.  St.  37.  (5)  Tliynne  v.  Protheroe,  2  Maule 
G.  3.  c.  136.  s.    2.     Hunt  v.  Stevens,  3     &,  Selw.  553. 

Taunt.  113.  (6)  See   also  St.    23   G.    3.  c.  68.  a. 

(2)  R.  V.  Bishop  of  Chester,  1  Stra.  3.  St.  35  G.  3.  c.  30.  s.  1.6.  St.  37 
624.  G.  3.  c.  90.  s.    1.  6.     55  G.  3.    c.  184. 

(3^  R.'  V.    Pearce,  Peake.     N.    P.  C.     Sch.  PartJ. 
75. 


*  Although  the  stamp-act  of  the  48  G.  3.  c.  149.  does  not  in  express  terms 
require,  that  the  paper  shall  bo  stamped  before  the  bill  or  note  is  written,  yet 
as  the  3d  and  8th  sections  of  this  statute  confirm  and  adopt  all  provisions 
and  regulations  relating  to  former  duties,  the  clause  in  the  19th  section  of  the 
31  G.  3.  is  still  in  force.  The  34  G.  3.  c.  32.,  which  authorizes  the  commis- 
sioners to  stamp  bills,  &c.  after  they  were  drawn,  on  payment  of  a  penalty, 
was  only  a  temporary  act,  and  has  expired.     See  Bayley  on  Bills,  p.  24. 


Ch.  9.]      as  a  Requisite  of  Written  Instruments.  525 

dence  of  a  contract,  or  ^ligatory  upon  the  parties  from  its  being  Agreement. 
a  written  instrument. 

In  an  action  against  a  wharfinger  or  carrier  for  not  delivering 
goods,  a  receipt  for  the  goods  is  admissible  in  evidence  without 
stamp,  although  the  value  of  the  goods  may  exceed  20/.,  the 
wharfage  or  price  of  carriage  being  under  that  sum;  for  this,  and 
not  the  value  of  the  goods  is  the  matter  of  the  agreement.  (1) 

A  written  paper,  delivered  by  an  auctioneer  to  a  bidder,  to  whom 
lands  were  let  by  auction,  containing  ihe  description  of  the  lands, 
the  term  for  which  they  were  let  to  the  bidder,  and  the  rent  paya- 
ble, is  not  such  a  minute  of  the  agreement  as  requires  a  stamp, 
unless  it  is  signed  by  some  of  the  parties,  or  by  the  auctioneer: 
nor  is  it  such  a  writing  as  will  exclude  parol  evidence  (2);  but  if 
signed  by  the  auctioneer,  and  delivered  to  the  bidder,  it  ought  to  be 
stamped.  (3)  A  contract  of  marriage  may  be  proved  by  unstamp- 
ed letters;  the  statute  evidently  applying  to  such  matters  only  as 
are  the  subject  of  pecuniary  calculation.  (4) 

An  agreement  is  to  be  stamped  in  proportion  to  the  number 
of  words  which  it  contains,  not  according  to  the  number  of 
items  agreed  upon.  But  if  the  parties  add  another  item  to 
an  agreement  which  is  already  complete,  and  which  has  been 
executed  between  them,  an  additional  stamp  ought  to  be  an- 
nexed, to  make  such  new  item  available.  As,  if  two  persons 
lay  a  wager,  and  write  it  down  in  the  form  of  an  agreement, 
which  is  stamped,  and  afterwards  by  another  agreement,  in- 
dorsed on  the  first,  they  consent  that  the  bet  shall  be  doubled; 
here  there  ouglit  to  be  two  agreement-stamps,  or  the  party 
cannot    recover   on    the   last    bet.  (5)     A    written  acknowledg- 


(1)  Chadvvick  v.  Sills,  by  Holioyd  (3)  Ramsbottom  v.  Mortley,  2  Manle 
J.;  and    rule  afterwards    refused    by  K.  &  Selw.  44S. 

B.  Ry.  &    Mo.  N.    P.  C.    15.     Latham         (4)  Orford    v.    Cole,    2    Starkie,    N. 

V.  Ruiley,  by   Lord   Tenterden,  Ry.  &  P.  C.  351. 

Mo.  N.  P.  C.  13.  (5)  Robson    v.   Hall,  Peake,   N.   P. 

(2)  Ramsbottom  v.  Toubridge,  ,2  C.  127.  Lord  Kenyon  is  said  to  have 
Maule  &  Selw.  434.  Ingram  v.  Lea,  been  of  opinion,  that  the  plaintiff 
2  Campb.  521.  Adams  v.  Fairbain,  2  might  recover  on  the  original  bet. 
Starkie,  N.  P.  C.  277.  Drant  v.  But  the  plaintiff  was  nonsuited  on  an- 
Brown,  3   Barn-  &  Cress.    665.     Haw-  other  point. 

kins  V.  Warre,  3  Barn.  &  Cress.  690. 


Of  Stamping, 


[Ch.  9. 


ment  of  tlio  payment  of  money  stanij<fed  as  a  receipt,  is  evi- 
dence of  the  fact  of  payment,  alihough  there  may  be  other 
writing  on  the  same  paper  amounting  to  an  agreement,  pro- 
vided this  does  not  in  any  manner  control  or  qualify  the  former 
part  (1;)  it  is  evidence  also  of  the  consideration  on  which 
the  money  was  paid,  if  the  consideration  is  stated  in  the  re- 
ceipt. (2) 


Cognovit.  A  cognovit,  being  a  mere  acknowledgment  of  an  account  with- 

out any  mutuality,  does  not  require  a  stamp.  But  if  there  be 
any  thing  of  agreement  beyond  the  mere  authority  to  enter  a 
cognovit,  then  a  stamp  becomes  necessary.  Thus,  where  the 
defendant  gave  a  cognovit  to  the  plaintifT  on  unstamped  paper, 
by  which  he  agreed  to  confess,  that  the  plaintiff  had  sustained 
damage  in  the  action  to  the  amount  of  30/.,  on  which  no  judg- 
ment was  to  be  entered,  unless  the  defendant  made  default  in 
payment  of  the  sum  of  5Z.  by  instalments,  together  with  costs  to 
be  taxed,  the  Court  held,  that,  in  consequence  of  the  terms  which 
had  been  added,  the  paper  in  question  amounted  to  an  agreement; 
but  that  it  was  an  agreement  for  less  than  20/.,  and  therefore  not 
liable  to  a  stamp.  (3) 

Exemptions.  The  following   particulars  are  exempted  from   stamp-duties  im- 

posed on  agreements.  (4) 


Memorandum 
of  insurance. 


1.  Any  label  or  memorandum  containing  the  heads  of  insur- 
ances, to  be  made  by  the  Royal  Exchange  Assurance  and  Lon- 
don Assurance. 


Agreement  for      2.   Memorandum   or    agreement  for    granting  a  lease  or  tack, 
a  lease.  ^^   rack-rent,  of  any  land  or  tenement,  under  the  yearly  rent  of 

5/. 


Whether  a  particular  agreement  is  to  be  considered  as  a  lease, 
(in   which  case  it  will  require   a    lease-stamp)   or  merely  as   au 


(1)  Grey  v.  Smith,  1  Campb.  387. 

(2)  Watkins  v.  HewleU,  1  Brod.  & 
Bing.  1 


(4)  St.    4S  G.    3.  c.  149.     See   also 
§|.  23  G.  3.  c.  58.  s.  8.      St.  35  G.  3. 
30.    s.    1.  6.      St.    37  G.  3,  c.  90. 


(3)    Ames  v.  Hill,  2    Bos.   &    Pull.     s.  1.  6.     55  G.  3.  c.  184.  Sch.  Pait  I. 
150.     Reardon  v.  Svvaby,  4  East,    188.     p.  498.  560. 
S.  P. 


Ch.  9.]     as  a  Requisite  of  fVritten  Instruments.  527 

agreement  for  a  lease,  must  depend  entirely  on  llie  intention  of  Agreement, 
the  parties,  as  it  is  to  be  collected  from  the  whole  of  the  instru- 
ment. (1)  If  the  words  are,  that  the  one  party  does  thereby 
demise,  &.c.  or  that  the  other  party  shall  have,  &c.  and  no  other 
words  appear  to  qualify  the  expression,  they  are  to  be  construed 
as  a  lease.  (2)  And  where  the  instrument  appears  to  have  been 
intended  to  transfer  a  present  interest,  or  where  it  contains  words 
of  present  demise,  without  any  thing  to  show  that  the  parties 
bad  in  contemplation  a  mere  executory  contract,  the  instrument 
will  be  considered  as  an  actual  lease,  notwithstanding  there  may 
be  a  stipulation  for  executing  a  subsequent  lease  under  seal.  (3) 
J3ut,  though  there  are  words  of  present  demise;  yet  if  it  may  be 
collected  that  a  future  lease  was  in  contemplation,  and  necessary 
for  ascertaining  the  rights  of  the  parties,  the  instrument  is  to  be 
considered  an  agreement,  not  a  lease.  (4) 

3.  Memorandum  or  agreement  for  the  hire  of  any  laborer,  aril-  Agreement  for 
-  r  •  1  ^  hire  of  servant, 
ncer,  manulaciurer,  or  menial  servant. 

An  agreement  for  the  assignment  of  an  a[)prentice  from  one 
master  to  another  is  not  within  the  meaning  of  this  clause; 
the  term  "  hiring"  not  being  applicable  to  an  apprentice.  (5) 
If  such  a  written  agreement  is  unstamped,  it  cannot  be  ad- 
mitted in  evidence,  nor  can  parol  evidence  of  the  terras  be  re- 
ceived. 

4.  iMeraorandum,  letter,  or  agreement  made  for  or  relating  to  Agreement  for 
the  sale  cf  any  goods,  wares,  or  merchandize.  ^^'^  of  goods. 

Upon    this   clause   it  has   been  deterniined,  that  an   agreement  i.  Meaning  of 

bv  the  defendant   to  take  a  share  of  some  goods,  which  had  been  ^^^  vvords, /or 
•'  °  ^  or  relating  to. 

(1)  Morgan  v.  Bissell,  3  Taunt.  65.        ling,  13  East,  IS.  Doe  dem.    Wallter  v. 

(2)  Drake    v.     Munday,    Cro.    Car.     Groves,  15  East,  244. 

207      Maldon's   case,  Cro.   El.    33.     5  (4)  Morgan  v.    Bissell,  3   Taunt.  72. 

T.  II.  167.  Doe    dem.    Jacksoa    v.    Ashburner,  5 

(3)  Harrington  v.  Wise,  Cro.  El.  T.  R.  163.  Coore  v.  Claire,  2  T.  R. 
486.  Tisdale  v.  Sir  VV.  Es.sex,  Hob.  739.  Doe  dem.  Broomfield  v.  Smith, 
34.     Baxter   v.    Brown,  2   Black.   973.  6  East,  530. 

Barry  v.  Nugent,  cited  5  T.  R.  165,  (5)  R.  v.  St.  Paul's,  Bedford,  6  T. 
167.  Pool  v.  Bentley,  2  Campb.  286.  R.  453.  R.  v.  Ditchingham,  4  T.  R, 
12  East,  168,  S.   C.     Tempest  v.  Ravv-    769. 


628  0/ Stamping,  [Ch.  9. 

Agreement.  bought  by  tlie  plaintirt"  on  iheir  joint  account,  and  to  pay  for 
lliem  at  a  certain  time,  is  an  agreement  relating  to  the  sale  of 
goods,  and  therefore  exempted  from  a  stamp  duty  (1;)  so  also  is 
an  agreement  by  a  broker  to  indemnify  his  principal,  for  whom 
he  bought  goods,  from  any  loss  on  a  re-sale  (2;)  or  a  guarrantee 
for  the  payment  of  goods,  which  a  third  person  was  about  to 
purchase  to  a  certain  amount  (3;)  or  a  receipt  for  the  price  of  a 
horse  containing  a  warranty  of  soundness  (4;)  or  an  agreement 
to  cancel  a  former  agreement  respecting  a  sale  of  goods,  and  for 
the  future  sale  of  goods  upon  different  terms.  (5) 

A  letter  from  a  principal  to  his  factor,  containing  bills  of 
exchange  drawn  upon  the  factor,  and  engaging  to  provide  for 
the  bills,  if  certain  goods  in  the  factor's  hands,  or  about  to  be 
placed  there,  remained  unsold  when  the  bills  should  become 
due,  is  not  within  the  exception  of  the  act,  and  requires  a 
stamp.  (6)  The  Court  held,  that  the  description  in  the  act  is 
confined  to  instruments  which  have  the  sale  of  goods  for  their 
primary  object,  and  that  the  primary  object  of  the  letter  in  ques- 
tion was  the  obtaining  of  money  upon  a  pledge  of  goods,  intended 
to  be  placed  in  the  factor's  hands. 

2.  Sale  of  An  agreement  for   the  making  of  machinery   at  a  fixed  price 

made.  was  considered,  in   the  case   of  Buxton   v.   Bedall  (7,)   to  be  not 

within  the  exemption;  on  the  ground,  that  it  is  not  a  contract 
for,  or  relating  to,  the  sale  of  goods,  but  relating  to  the  making 
of  goods,  and  for  work  and  labor  to  be  done.  (7)  The  lan- 
guage of  the  exempting  clause,  "  Memorandum  or  agreement 
for,  or  relating  to,  the  sale  of  any  goods,  wares,  or  merchan- 
dize," is  expressed  in  terms  the  most  general  and  comprehen- 
sive; and,  perhaps,  on  reconsideration,  may  be  thought  to  extend 
to  contracts  relating  to  the   sale  of  goods,  which    are  to  be  made 

(1)  Venning  v.  Leckie,  13  East,  7.  (6)  Smith  v.  Cator,  2  Barn.    &  Aid. 

(2)  Curry  v.  Edensor,   3  T.  R.    524.  778. 

(3)  Warrington  v.  Furbor,  8  East,  (7)  3  East,  303,  on  sliowing  cause 
242.  Watkins  v.  Vince,  2  Starkie,  against  a  new  trial.  The  only  Judges 
N.  P-  C.  369.  present     were   Mr.     Justice   Lawrence, 

(4)  Skrine  v.  Elmore,  2  Campb.  and  Mr.  Justice  Grose ;  and  they  de- 
407.  termined    the     point    on    the     authority 

(5)  Whitworth  v.  Crockett,  2  Stark,  of  Towers  v.  Sir  J.  Osborne,  a  case 
N.  p.  C.  431.  on   the  statute    of     frauds.      See    this 

case  stated  in  ch.  8.  sect.  1. 


Ch.  9.]     as  a  Requisite  of  Written  Instruments.  629 

by  the  seller  before  iheir  delivery,  no  less  than  to  contracts  for  Agreement. 
the  sale  of  goods  already  made.  It  may  be  observed  further, 
that  the  true  principle  and  ground  of  decision  in  the  case  of 
Towers  v.  Sir  J.  Osborne  (on  the  authority  of  which  the  case 
of  Buxton  V.  Bedal  was  determined)  does  not  appear  to  be  in- 
consistent with  such  a  construction.  The  court  of  King's  Bench 
there  held,  that  a  contract  for  a  chariot,  which  a  person  had  be- 
spoke, was  not  a  contract  for  the  purchase  of  goods,  but  for  the 
making  of  something  not  in  existence,  and  therefore  not  within 
the  17th  section  of  the  statute  of  frauds;  for  that  section  speaks  of 
acceptance  of  part  of  the  goods  as  one  of  the  requisites  to  bind  the 
bargain,  and  is  supposed  therefore  not  to  extend  to  those  cases,  in 
which  the  subject-matter  of  the  contract  is  incapable  of  delivery 
and  of  part-acceptance.  (1)  But  in  the  exempting  clause  of  the 
stamp-act,  nothing  is  said  relative  to  the  delivery  of  the  goods,  nor 
is  there  any  reason  for  supposing,  that  the  legislature  intended  to 
make  a  distinction,  with  respect  to  stamping,  between  contracts 
for  the  sale  of  goods  ordered  to  be  made,  and  contracts  for  such  as 
are  already  made.  It  constantly  happens,  that  the  subject-matter 
is  not  at  the  time  of  the  contract  in  the  state  in  which  it  is  to  be 
delivered;  in  some  cases  more  is  to  be  done  than  in  others,  but 
still  the  contract  appears  to  relate  to  the  sale  of  goods,  although 
the  goods  may  not  be  at  the  time  of  the  purchase  in  a  complete 
state  for  delivery.  And  this  is  the  construction  which  the  Court 
of  Common  Pleas  has  put  upon  the  clause  in  question,  in  the  late 
case  of  Wilks  v.  Atkinson  (2),  in  which  it  was  determined,  that  a 
contract  for  the  purchase  of  a  quantity  of  linseed  oil  was  not  liable 
to  a  stamp,  although  the  oil  had  not  been  made,  but  was  to  be 
prepared  out  of  raw  materials  in  the  seller's  possession. 

An  agreement  for  the  sale  of  crops  growing  on  certain  lands,  to  ^  Sale  of 
•         IT  ,      r  •       1  growing  crops- 

be  delivered  afterwards,  has  been  determined  to  be  an  agree- 
ment for  an  interest  in  land,  and  is  therefore  not  exempted  as  a 
sale  for  goods.  (3)      In  the  case  of  Waddington   v.   Bristow,  Mr. 

(1)  See   Groves    v.    Buck,   3   Maule  ley  C.  J.  and  Chambre  J-    in  Wadding- 
&  Selw.  179.  ton  v.  Bristow,  2  Bos.  &   Pull.    454. 

(2)  6    Taunt.    11.     1    Marshall,  412.  (3)   Waddington    v.    Bristow,    2  Boa. 
And  see   the   opinions,  of  Lord   Alvan-  &  Pull.    453.     Crosby   v.    Wad«worth, 


Vol.  I.  67 


6  East,  602. 


530  Of  Stampingy  ^c.  [Ch.  9. 

Agreement.  Justice  Chambre  said,  "  Though  I  admit  that  a  contract  for  the 
sale  of  so  many  hops  as  twenty-two  acres  might  produce,  to  b« 
delivered  at  a  distant  day,  might  fall  within  the  exemption  of  the 
act,  notwithstanding  the  hops  were  not  in  the  state  of  goods  at 
the  time  of  the  contract  made,  yet  I  cannot  think  the  present 
agreement  within  the  exemption,  since  it  gives  an  interest  to  the 
vendee  in  the  produce  of  the  vendor's  land."  But,  in  a  late  case, 
where  a  verbal  contract  was  made  for  the  sale  of  a  then  growing 
crop  of  potatoes,  the  Court  of  King's  Bench  held,  that  whenever  a 
contract  is  for  the  produce  of  a  given  quantity  of  land,  and  is  a 
contract  to  render  what  will  afterwards  become  a  chattel,  it  is  not 
a  contract  within  the  meaning  of  the  fourth  section  of  the  statute 
of  frauds,  although  sooie  advantage  may  accrue  to  the  vendee  by 
the  subject  of  the  sale  remaining  in  the  land  :  and  they  distin- 
guished the  case  from  the  before  mentioned  decision  in  Crosby  r. 
Wadsworth  on  the  ground,  that  there  an  exclusive  right  was  con- 
tracted for  the  growing  surface  of  the  land.(l) 

Agreement  for      g^  Memorandum  or  agreement,  made  between  the  master  and 
■eamen's    wa-  .  o  ' 

gee.  marmers  ol  any  ship  or  vessel  tor  wages,   on  any  voyage  coast- 

wise from  port  to  port  in  Great  Britain. 

Letter  con-      q    Letters  containing  any   agreement   (not  before  exempted)  in 

taming    agree-  ,        j-  •  ,  c  u  . 

ment.  respect  oi  any  merchandise,   or   evidence   ot    such  an  agreement, 

which  shall  pass  by  the  post,  between  merchants  and  other  per- 
sons carrying  on  trade  or  commerce  in  Great  Britain,  and  residing 
and  actually  being  at  the  time  of  sending  such  letters  at  the  dis- 
tance of  50  miles  from  each  other.  (2) 

A  letter  written  by  one,  who  managed  another  person's  trade, 
to  a  creditor,  promising  to  pay  a  debt  which  arose  in  the  regular 
course,  has  been  held  to  come  within  the  letter  and  spirit  of  this 
exemption.  (3) 

(1)  Evans   v.   Roberta,    5     Barn.  &  (2)  Leigh   v.    Banner,   1    Esp.  N.  P. 

Cress.    829.     And  see    Parker  v.  Stani-  C.  403.     Stat.  32.  G.  3- c.  51. 

land,     11     East,      362.       Warwick    v.  (3)    M'Kenzie   v.   Banks,    5.    T.  R. 

Brace,  2  Maule  &  Selw.  205.  176. 


Ch.    I  O.J  Of  the  Admissibilittj  of  Parol  Evidence.  531 


CHAP.  X. 

Of  the  ^dinissibility  of  Parol  Evidence  to  explain,  vary  or  dis- 
charge   Written  Instruments. 

The  order  in  which  it  is  proposed  to  treat  of  this  intricate  and 
extensive  subject,  is,  First,  to  consider  in  what  cases  parol 
evidence  is  admissible  to  explain  ambiguities  in  written  instru- 
ments; Secondly,  whether  parol  evidence  is  admissible  to  add  to, 
vary,  or  discharge  written  instruments;  and,  Thirdly,  to  consider 
the  rule  of  evidence  on  this  subject,  established  in  courts  of  equity. 

Sect.  I. 

Of  the  Admissibility  of  Parol  Evidence  to  explain  Ambiguities. 

The  first  section  treats  of  Ambiguities,  latent  and  patent,  and  of 
the  admissibility  of  evidence  of  usage  as  explanatory  of  ancient 
grants  and  deeds. 

There  are  two  sorts  of  ambiguities  of  words,  says  Lord  Bacon  Auibigujtiet. 
(I) ;  the  one  is  called  ambiguitas  latens,  the  other  ambiguitas  patens. 
The  first  occurs,  where  the  deed  or  instrument  is  sufficiently  cer- 
tain and  free  from  ambiguity,  but  the  ambiguity  is  produced  by  ev- 
idence of  something  extrinsic,  or  some  collateral  matter  out  of  the 
instrument;  the  latter  kind  is  such  as  appears  on  the  face  of  the 
instrument  itself.  (/) 

First,  with  respect  to  latent  ambiguities. 

A  latent  ambiguity,  which  is  raised  by  extrinsic  evidence,  may  Latent 
be  explained  in  the  same   manner.      Thus,    if  a   person  grant  his  a«i"'o^'^y' 
manor  of  S.  to  one  and  his  heirs,   so   far  there  appears  to  be  no 
ambiguity;  but  if  it  should  be   proved,    that   the  grantor  has  the 
manors  both  of  South  S.  and  North  S.,   this  ambiguity  is  matter 

(1)  Bac.  Elem.  rule  23. 
(Z)  See  Note,  938,  p.  1358. 


632  0/  the  Admissibility  of  Parol  Evidence,    [Cli.  10. 

Latent  J,,  fact,  and  parol  evidencejniay  be  adiiiiiied  to  show  which  of  the 

ambiguity.  ,  •  'i     ,  ,  ■,  ■.      c       ■  i       i 

' two  manors  the  party  intended  to  convey.  (1)     oo,  it  was  resolved 

in  Lord^Cheyney'scase  (2),  if  a  person  has  two  sons  both  baptized 
by  the  name  of  John,  and  conceiving  that  the  elder,  who  had  been 
long  absent,  is  dead,  devises  his  land  by  his  will  in  writing  to  his 
son  generally,  and  in  truth  the  elder  is  living;  in  this  case  the 
younger  son  may  in  pleading  or  in  evidence  allege  the  devise  to 
him,  and  if  it  is  denied,  he  may  produce  witnesses  to  prove  his  fa- 
ther's intent,  that  he  thought  the  other  was  dead;  or  that,  at  the 
time  of  making  his  will,  he  named  his  son  John  the  younger,  and 
that  the  writer  left  out  the  addition.  No  inconvenience,  adds  Lord 
Coke,  can  arise,  if  an  averment  be  taken  in  such  a  case  ;  for  he 
who  sees  the  will,  by  which  land  is  so  devised,  cannot  be  deceived 
by  any  secret  averment  :  when  he  sees^the  devise  to  the  testator's 
son  John,  generally,  he  ought  at  his  peril  to  enquire,  which  son  the 
testator  intended,  which  may  easily  be  known  by  him  who  wrote 
the  will,  and  by  others  who  were  privy  to  the  intent;  and,  if  no 
direct  proof  can  be  made  of  his  intent,  there  the  devise  is  void  for 
its  uncertainty,  (m) 

Mistako  in  When  a    devise    in  a  will  is  to    a    person,    designated    by    a 

name.  Christian   and    surname   without  any    other   description,    and  no 

such  person  appears  to  claim  the  legacy,  or  to  have  been  known 
by  the  testator,  parol  evidence  may  be  admitted  to  show,  that 
both  the  names  have  been^  mistaken  by  the  person,  who  took 
the  instructions  for  the  will;  as,  in  the  case  of  Beaumont  v.  Fell, 
(3),  where  a  legacy  was  bequeathed  to  Catharine  Earnley,  and 
the  name  of  the  person  who  claimed  the  legacy  was  Gertrude 
Yardly,  the  Court  established  the  claim,  observing  how  very 
material    it    was,    that  no    such    person    as    Catharine    Earnley 

(1)  Bac.  Eiem.  rule  23.  dein.  Bulkeley  v.    Wilford,    Ry.  &  Mo. 

(2)  5   Rep.    63,    b.     For  other    ex-     N.  P.  C.  S8. 

amples  of  patent  ambiguities,  see  Alt-  (3)  2  P.  VVnis.  140.  See  also  Dow- 
ham's  case,  8  Rep.  155.  Hob.  .32  set  v.  Sweet,  Ambl.  175.  Bradwin  v. 
Jones  V.  Newman.  1  Blackst.  60.  Harpur,  Ambl.  374.  Parsons  v.  Par- 
Harris  V.  Bp.  of  Lincoln,  2  P.  Wms.  sons,  1  Ves.  jun.  266.  3  Ves.  322. 
136.  Careless  v.  Careless,  1  Merri-  Smith  v.  Coney,  6  Ves.  42.  Doe  dem. 
vale,  384.  Doe  dem.  Westlake  v.  Cook  v.  Danvers,  7  East,  303.  Doe 
VVestlake,   4   Barn.    &    Aid.  57.     Doe  dem.  Chevalier  v-  Huthwaite,  3  Barn. 

&  Aid.  632. 


(m)  Sea  Note  939,  p.  1362. 


Sect,  l.j         To  explain  Written  Instruments.  533 

claimed  under  the  will.     Here,  there  was  no  ambiguity  on  the  face  Latent 

.      .      ambiguity, 
of  the  will,  but  the  latent  ambiguity  was  introduced   by  extrinsic 

evidence,  and  the  same  kind  of  evidence  also  showed,  that  there 
was  a  person  of  the  name  of  Gertrude,  whom  the  testator  called 
Gatty,  which  name  the  person,  who  drew  the  will,  mistd'Bk  for 
Katly;  in  this  case,  therefore,  as  parol  evidence  was  admitted  to 
show  the  latent  ambiguity,  parol  evidence  was  also  admitted  to  ex- 
plain it.(n)  So,  where  the  testator  bequeathed  his  stock  in  a  par- 
ticular fund,  and  it  appeared  that  he  had  not,  at  the  time  of  making 
his  will  or  afterwards,  any  stock  in  that  fund,  having  sold  out  some 
time  before,  and  purchased  into  another  fund,  evidence  was  admit- 
ted to  show,  whence  the  mistake  arose,  and  the  legacy  was  satis- 
fied out  of  the  new  fund,  into  which  the  testator  had  purchased. 
(1)  (o)  So,  where  the  devise  was  "  of  a/Z  my  farm  and  lands, 
called  Trogues-farm,  now  in  the  occupation  of  Jl.  C,"  the  Court 
of  King's  Bench  were  clearly  of  opinion,  that  two  closes  in  the 
occupation  of  L.  JIf.,  but  forming  a  part  of  Trogues-farm,  would 
pass  under  the  devise;  and  that  a  written  notice  from  the  testator 
to  L.  M.  had  been  properly  admitted  in  evidence,  to  show  that 
he  considered  them  as  parcel  of  his  farm  called  Trogues  farm.  (2) 
Here  the  devise  was  sufficiently  comprehensive  to  include  the 
whole  of  the  lands,  and  ought  not  to  be  narrowed  by  the  defective 
description  of  the  occupation. (  p) 

In  the  instances  which  have  been  just  mentioned,  it  is  to  be  ob-  Evidence,  to 
served,  that,  unless  the  evidence  had  been  admitted,  the  will  ^yjn 
could  not  have  taken  effect,  (q)  In  the  first  case,  no  person  was 
to  be  found  corresponding  with  the  description  in  the  devise;  in 
the  second,  the  testator  had  no  property  in  the  funds,  out  of 
which  he  appointed  the  legacy  to  be  paid;  and  in  the  third,  if 
the  closes  in  question  were  not  to  be  included  as  part  of  the 
devised  farm,  the  word  "all"  in  the  devise  would  not  be 
satisfied.  And  the  question  on  the  admissibility  of  parol  evi- 
dence, in  such  cases,  will   depend  principally  upon  this,  namely, 

(1)  Selwood  V.  Mildmay,  3  Ves.  Southern,  1  Maule  &  Selw.  299.  Doe 
306.  See  4  Ves.  676.  1  Bro.  Ch.  C.  dem.  Beach,  v.  Lord  Jersey,  1  Barn. 
472,  Andrews  v.  Dobson,  1  Cox  Ch.  &  Aid.  550.  Doe  dem.  Harris  v. 
C.  425.  Greathed,  8  East,  103. 

(2)  Goodtitle     dem.      Radford    v. 


(n)  See  Note  940,  p.  1368.     (o)  See  Note   941,  p.  1376.     (p)   Seo  Note  942, 
p.  1376.     iq)  See  Note  943,  p.  1382. 


534  Of  the  Admissibility  of  Parol  Evidence,     [Ch.  10. 

Latent  whether  tho  evidence  is  necessary  to  givo  an  eflective  operation  to 

nmbigniiy.  ^^^  devise,  or  whether,  without  that  evidence,  there  appears  to  be 
sufficient  to  satisfy  the  terms  of  tl)e  devise,  and  the  intention  of  tha 
testator  as  expressed  on  the  face  of  the  will.  If  the  testator  has 
left  property,  which^^corresponds  with  the  description  in  the  will, 
extrinsic  evidence  is5not  admissible  to  show,  that  he  intended  lo 
include  other|property  not  within  that  description. (1)  (r) 

inc^to'^thf"'      I"  ^he  case  of  Whitbread  v.  May (2),  where  the  testator  having 
ettaU.  devised  all  his  estates  in  trust  for  his   son   for  life  wiih  remainder 

over  in  strict  settlement,  &,c.,  by  a  codicil  afterwards  revoked  his 
will  "so  far  as  it  related  to  his  estate  at  Lushill,  in  the  county  of 
Wilts,  and  Hearne  and  Buckland,  in  the  county  of  Kent,  which 
he  devised  to  his  son  in  fee,"  it  appeared,  that,  at  the  lime  of  the 
devise,  the  testator  had  lands  in  the  parish  of  Hearne  and  in  sever- 
al other  parishes,  all  which  he  had  purchased  by  one  contract  from 
one  person;  evidence  was  then  offered  to  show,  that  the  testator, 
by  the  description  of  his  "  estate  at  Ilearne,^^  meant  to  designate 
and  include  not  only  the  lands  in  that  parish,  but  also  all  the  other 
lands'which  he  had  purchased  at  the  same  time.  This  evidence 
was  received  at  the  trial,  subject  to  the  opinion  of  the  Court  above; 
and  the  Court  of  Common  Pleas  were  afterwards  equally  divided 
in  opinion  on  the  question  of  its  admissibility. 

In  a  much  later  case,  however,  the  case  of  Doe  on  the  demise 
of  Sir  A.  Chichester  v.  Oxenden,(3)  which  was  very  similar  to 
the  last,  the  Court  of  Common  Pleas  adjudged  such  evidence  to 
be  inadmissible.  The  question  there  was,  whether  on  a  devise 
-of  the  testator's  "  estate  of  Ashton,^^  parol  evidence  could  be 
admitted  to  show,  that  the  testator  intended  by  that  description 
to  devise  all  his  maternal  estate,  which  consisted  of  two  manors 
in  the  parish  of  Ashton,  and  another  manor  in  the  adjoining 
parish  ;  the  Court    of  Common  Pleas,    after  hearing  two  argu- 

(1)  Doe  dem-  Brown   v.    Brown,    11  (2)  2  Bos.  &  Pull.  593. 

East,  441.     Doe  v.  Oxenden,  3  Taunt.  (3)  3  Taunt.  147.      Doe  dem.  Brown 

147.     Doe   dem.   Tyrrell   v.    Lyford,  4  v.    Greening,   3   Maule   &    Selw.    171. 

Maule    &   Selw.    550.     Tytler   v.  Dal-  Beaumont   v.    Field,    1    Barn.   &    Aid. 

ryraple,  2  Merivale,  419.  247. 


(?)  See  Note  944,  p.  1382. 


Sect.  1.]         To  explain  Written  Instruments.  535 

ments,  determined  against  its  admissibility.     The  Chief  Justice,  Latent 

Sir  James  Mansfield,  in  delivering  the  judgment  of  the  court,  after '■ — 

premising  that  he  had  felt  considerable  doubts  on  the  subject  in 
consequence  of  the  case  of  Whitbread  v.  May,  in  which  c^se  the 
Court  was  equally  divided  on  the  admissibility  of  parol  evidence, 
adverted  to  the  case  of  Beaumont  v.  Fell(l),  and  to  the  similar 
case  of  Dowset  v.  Sweet(2),  and  observed  on  these  cases,  that  al- 
though it  was  not  expressly  stated  to  have  been  necessary  to  re- 
ceive the  evidence  in  order  to  give  effect  to  the  will,  yet  that 
ground  of  determination  might  be  inferred.  "It  will  be  found," 
said  the  Chief  Justice,  "  that  the  will  would  have  had  no  opera- 
tion, unless  the  evidence  had  been  received.  But,  in  the  case 
now  before  the  Court,  the  will  has  an  effective  operation  without 
the  evidence  proposed;  every  thing  will  pass  under  it,  that  is,  in 
the  manor  or  parish,  or  what  he  would  naturally  call  his  Ashton 
estate.  This  will  be  an  effective  operation  ;  and,  this  being  so, 
the  case  in  this  respect  differs  from  all  the  others  ;  because  in 
them  the  evidence  was  admitted  to  explain  that  which,  without 
such  explanation,  could  have  had  no  operation.  It  is  safer  not  to 
go  beyond  this  line.  Only  those  premises,  therefore,  will  pass 
under  the  devise,  which  are  in  the  manor  or  parish  of  Ashton. 

Soon  after  this  decision  of  the  Court  of  Common  Pleas,  the  de- 
visee brought  an  action  of  ejectment  against  the  heir  at  law 
and  offered  at  the  trial  the  evidence  before  mentioned;  on  the 
rejection  of  which,  a  bill  of  exceptions  was  tendered;  and  the 
case  was  brought  up  to  the  House  of  Lords  on  a  writ  of  error.  (3) 
The  question  on  the  admissibility  of  the  evidence  was  referred  to 
the  Judges;  and  Lord  Chief  Justice  Gibbs  delivered  their  unan- 
imous opinion,  that  the  evidence  ought  not  to  be  admitted. 
*'  The  courts  of  law,"  said  the  Chief  Justice,  "  have  been  jealous 
of  the  admission  of  extrinsic  evidence  to  explain  the  intention 
of  a  testator;  and  I  know  only  of  one  case,  in  which  it  is  per- 
mitted, that  is,  where  an  ambiguity  is  introduced  by  extrinsic 
circumstances.  There,  from  the  necessity  of  the  case,  extrinsic 
evidence    is    admitted  to  explain    the    ambiguity;    for    example, 

(1)  Vide  supra,  p.  632.  (3)  Doe    detn.   Oxenden    v.  Sir    A. 

(2)  Ambl.  671.  Chichester,  4  Dow.  66. 


636  Of  the  Admissibility  of  Parol  Evidence,  [Ch.  10. 

Latent  where  a  testator  devises  his  estate  of  Blackacre,  and  has  two  es- 

ambignitj. ^^^^^  called  Blackacre,  evidence  must  be  admitted  to  show,  which 

of  the  Blackacres  is  meant;  or,  if  one  devises  to  his  son  John 
Thomas,  and  he  has  two  sons  of  the  name  of  John  Thomas,  evi- 
dence must  be  received  to  siiow,  which  of  them  the  testator  intend- 
ed. And  so,  also,  if  one  devises  to  his  nephew  William  Smith, 
and  has  no  nephew  answering  the  description  in  all  respects,  evi- 
dence must  be  admitted  to  show,  which  nephew  the  testator  meant, 
by  a  description  not  strictly  applying  to  any  nephew.  The  ambi- 
guity there  arises  from  an  extrinsic  fact  or  circumstance,  and  the 
admission  of  evidence  to  explain  the  ambiguity,  is  necessary  to 
give  eflect  to  the  will;  and  it  is  only  in  such  a  case  that  extrinsic 
evidence  can  be  received.  It  is  of  great  importance,  that  the  ad- 
mission of  such  extrinsic  evidence  should  be  avoided,  where  it  can 
be  done,  that  a  purchaser  or  an  heir  at  law  may  be  able  to  judge, 
from  the  instrument  itself,  what  lands  are  or  are  not  affected  by  it. 
Here  the  devise  is  of  all  the  devisor's  estate  at  Ashton  (for  there  is 
no  difference  between  the  words  "  estate  of  Ashton"  and  "  estate 
at  Ashton"),  and  he  has  an  estate  at  Ashton,  which  satisfies  the 
description.  It  is  true,  he  has  other  lands,  which  come  to  him 
along  with  his  estate  of  Ashton;  but  they  are  not  therefore  com- 
prised in  the  w^ords  "  my  estate  of  Ashton."  If  a  testator  should 
devise  his  lands  of  or  in  Devonshire  or  Somersetshire,  it  would  be 
impossible  to  say,  that  you  ought  to  receive  evidence,  that  his  in- 
tention was  to  devise  lands  out  of  these  counties;  and  for  the  same 
reason,  when  the  testator  here  describes  the  lands  as  his  estate  of 
Ashton,  you  cannot  receive  extrinsic  evidence  to  extend  this  to 
other  lands  not  of  Ashton. "(s) 


devisee. 


„  „,. ,      .         In  the  case  of  Thomas  v.   Thomas(l),  where  the  testator  had 

2.  With  refer-  v    / ' 

ence  to  the       devised  to  his  grand-daughter   Mary  Thomas,    of  Llechlloyd,   in 

Merthyr  parish,  it  appeared,  that,  at  the  time  of  his  death,  he  had 
a  grand-daughter  of  the  name  of  Elinor  Evans,  one  of  the  lessors 
of  the  plaintiff,  who  lived  in  the  place  and  parish  named  in  the 
will,  and  also  a  great-grand-daughter,  Mary  Thomas,  the  defend- 
ant, the  only  person  of  that  name  in  the  family,  but  who   lived 

(1)  6  T.  R.  671.     And  see  Lord  Walpole  v.  Lord   Cholmondeley,  7  T.  R.  138. 


(s)  See  Note  945,  p.  1383, 


Sect.  1.]  To  explain   Written  Instruments.  537 

in  another  place,  and  had  never  been  in  Merthyr  parish;  the  plain-  I-atent 

1        •  I                                                    ambiguity, 
tin's  counsel   at  the  trial  oliered   parol  evidence  to  show,  that  the 

person  who  drew  the  will,  had  made  a  mistake  in  the  name  of  the 
devisee;  and  Islv.  Justice  Lawrence  received  the  evidence(l),  sub- 
ject to  the  opinion  of  the  court  above  on  its  admissibility;  but  as 
the  jury  were  of  opinion,  that  the  name  had  not  been  inserted  by 
mistake,  and  therefore  found  for  the  defendant  on  the  first  count, 
which  laid  the  demise  from  Elinor  Evans,  the  admissibility  of  this 
evidence  did  not  afterwards  form  any  part  of  the  argument.  Af- 
ter this  finding  of  the  jury,  the  question  was  between  Mary  Thomas 
and  the  plaintiff  on  a  demise  from  the  heir  at  law,  and  in  this  stags 
of  the  cause  the  defendant's  counsel  offered  evidence  of  declara- 
tions made  by  the  devisor  previous  to  the  making  of  his  will,  ex- 
pressive of  his  regard  for  the  plaintiff',  and  of  his  intention  of  giving 
her  the  premises  in  dispute.  But  this  evidence  was  rejected,  on 
the  ground,  that  nothing  dehors  the  will  could  be  received,  to  show 
the  intention  of  the  testator  (which  could  only  be  collected  from 
the  words  of  the  will  itself),  after  the  removal  of  any  latent  ambi- 
guity in  the  description  of  persons  or  other  terms  in  the  will.  And 
this  opinion  was  afterwards  affirmed  by  the  Court  of  King's  Bench. 
"  If  there  had  been  no  person,"  said  Lord  Kenyon,  "  to  answer  the 
description  of  grand-daughter,  living  at  Llechlloyd,  in  Merthyr 
parish,  I  should  have  rejected  the  description,  and  have  said,  tliat 
the  devise  applied  to  Mary  Thomas;  but  it  appears  that  there  is 
another  person  answering  that  part  of  the  description,  who  is  also 
in  another  part  of  the  will  an  object  of  the  testator's  bounty. 
Then,  as  there  are  two  parts  of  the  description  not  answering  to 
Mary  Thomas,  who  is  named  in  this  clause  of  the  will,  we  are  left 
to  conjecture  who  was  meant  by  the  devisor;  but  the  law  will  not 
allow  an  heir  at  law  to  be  disinherited  by  conjecture.  And  with  re- 
gard to  the  other  question  respecting  the  rejection  of  evidence," 
added  Lord  Kenyon,  "  it  was  properly  rejected;  the  supposed  dec- 
larations having  been  made  by  the  testator  long  before  the  will  was 
made:  but  had  they  been  made  at  the  time  of  making  tlie  will, 
I  should  have  thought  them  admissible  evidence."  [t) 

(1)  See  8  Vin.  Ab.  312,  pi.  29;  and  Hampsiiire  v.  Pierce,    2  Ves.  216,    cited 
by  Lawrence,  J.,  6  T.  R.  678, 


(<)  See  Note  946,  p.  1383. 
Vol.   I.  68 


538 

Patent 
ambiguity. 

Patent 
ambiguity. 


Of  the  Admissibility  of  Parol  Evidence,    [Ch.  10. 

Secondly,  with  respect  to  patent  ambiguities. 

If  a  clause  in  a  deed,  or   will,  or  any  other   instrnment,  is  so  am- 
biguously or  defectively  expressed,  that  a   court  of  law,  which  has 
to  put  a  construction  on  the  instrument,  is  unable   to  collect  the  m- 
lention  of  the  parly,  evidence  of  the  declaration  of  the  party  cannot 
be  admitted  to  explain  his  intention;  but  the  clause  will  be  void  on 
account  of  its  uncertainty.     In  many  cases  an   apparent  uncertain- 
ty may  be  removed  by  collecting  the  general  intention   from  other 
passages  in  the  writing,  so  as  to  make  the  whole  consistent:   or  by 
a  reference  to  some  event,  or  some  other  writing,  or  some  medium 
of  explanation,   adverted   to  in  the   instrument.     But  when,  after 
comparing  the  several  parts  of  a  written  instrument,  and  collecting 
all  the  lights  which  the  writing  itself  supplies,  the   intention  of  the 
parties  still  appears  to  be  uncertain,  parol  evidence  of  their  inten- 
tion  is  not  admissible.      "  Ambiguilas  patens,"  says  Lord   Bacon 
(1),  (that  is,    an  ambiguity   apparent   on   the   deed  or  instrument) 
*'  cannot  be  helped   by   averment ;  and  the  reason  is,  because  the 
law  will   not  couple  and    mingle   matter  of  specialty,    which  is  of 
the  higher  account,  with   matter  of  averment,    which  is  of  inferior 
account  in  law;    for  that  were  to  make  all   deeds  hollow,  and  sub- 
ject to  averment,  and  so  in  effect  to  make  that  pass  without  deed, 
which  the  law  appoints  shall  not  pass  but  by  deed.     It  holds  gene- 
rally," he  adds,  "  that  all  ambiguity  of  words  within  the  deed,  and 
not  out  of  the  deed,   may   be  helped  by  construction,  or  in  some 
cases   by   election, (it)    but  never   by   averment;   but  rather  shall 
make  the  deed  void  for  uncertainty. "(v) 


Uncertainty 
in  devise. 


And  in  the  case  of  a  will,  if  any  devise  is  exf)ressed  doubtfully 
and  with  uncertainty,  the  only  construction  which  it  is  capable  of 
receiving,  is  by  cotiiparing  it  with  the  other  ))arts  of  the  will; 
the  declarations  of  the  testator  are  not  admissible  to  remove  the 
apparent  ambiguity,  or  to  explain  his  intention.  As,  for  ex- 
ample, if  the  devise  is  to  "  one  of  the  sons  of  J.  S."  who  has 
several   sons,  such   an  uncertainty  in    the    description  of  the   de- 

(1)  Bac.  Elem.  rule  23.  Doe  dem  5.50.  Lord  Cholmondeley  v.  Lord 
Tyrrell    v.  Lyford,    4   Maule    &    Selw      Clinton,  2  Merivale,  343. 


(u)  See  Note  947,  p.  1383.     (v)  Sec  iNote  948,  p.  1383. 


Seel.    1.]  To  explain  Wr'uten  Instruments.  539 

visee  cannot  be  exijlained    by  parol    proof. f I)  (w)      So  in  a  case.  Patent 

1            I                                I       ,•          •  •          •,-.,.                      .                      ambiguity. 
Vvhere  the  testator  made  dispositions  ni  liis  will  to  several  persons, 

among  others  to  his  wife  and  niece,  who  were  the  only  women 
mentioned  in  the  will,  and  then  devised  "  to  her"  a  particular  estate 
for  life,  the  question  was,  whether  parol  evidence  could  be  admit- 
ted, to  show  which  of  the  two  was  intended  :  the  Lord  Chancellor 
refused  to  receive  it,  on  the  ground,  tliat  it  would  tend  to  put  it  in 
the  jiow^er  of  witneses  to  make  wills  for  testators  ;  the  Court  held, 
that  though  the  term  ''  her"  was  relative,  it  was  to  be  referred  in 
this  case  to  the  wife,  because  in  otlier  parts  of  the  will  it  seemed 
10  relate  to  the  wife  ;  but  expressly  excluded  the  parol  evidence 
offered  to  explain  the  will. (2) 

A  blank  in  a  will,  for  the  devisee's  name,  is  an  instance  ofap-  Omission  of 
parent  ambiguity,  and  parol  evidence  cannot  be  admitted  to  """^®  "^  ^'*''"* 
show,  what  person's  name  the  testator  intended  to  insert. (3) 
But  on  a  bequest  to  a  person,  whose  surname  was  mentioned 
with  a  blank  left  for  the  Christian  name,  the  party,  who  claimed 
the  legacy,  was  allowed,  not  only  to  prove  acts  of  kindness  and 
constant  affection  on  the  part  of  the  deceased,  but  to  show  fur- 
ther, that  the  testator  had  said,  ''he  would  provide  for  him,  and 
that  he  had  left  him  something  by  his  will. "(4)  And  in  another 
case,  where  only  one  initial  appeared  in  the  will,  the  bequest 
being  "  to  Mrs.  G.,"  without  any  other  description,  the  Chan- 
cellor referred  it  to  the  Master  to  receive  evidence,  to  show  who 
was  the  person  intended  to  be  described  by  thai  initial.  (5)  The 
distinction  between  tliese  cases  is,  that  in  tiie  former  there  is  no 
description  whatever  of  a  devisee,  and  whether  the  testator  had 
selected  any  person,  as  the  object  of  his  devise,  is  entirely  uncer- 
tain on  the  face  of  the  will  ;  but  in  the  last  two  cases,  the  testrtor 
has  given  some  description,  and  though  it  would  appear  too 
slight  and  general  for  the  iulbrmation  of  strangers,  yet  to  persons 
well  acquainted  with  the  tesuiior  it  might  be  sufficiently  full  and 
distinct  :  in  the  first  of  these  two  cases  the  testator  might  not 
have   known   the  Christian    name;    in    tha   other,  the   description 

(1)  2  Vern  •'624.     8  Hep.  155.  a.  Atk.  257.     Hunt  v.  Hart,     3  Bro.     Ch. 

(2)  Caslletonv.    Turner;     cited    2     C.  311. 

Ves.  217.  (4)  Price  v.  Page,  4  Ves.  680. 

(3)  Bayiis   v.  The   Attorney-general,         (5)  Abbott    v.    Massie,  3  Ves.    148. 
2   Atk.    239.     Castleton   v.  Turner,    3     Andrews  v,  Dobson,   1    Cox   Cas.    425. 

(w)  See  Note  949.  p.  1394. 


540  Of  the  Admissibility  of  Parol  Evidence  ^   [Ch.  10. 

Patent  in    the  will  might  have  been   iho  only  one   by  which  the  testator 

ambiguity.  i  i      •  i         i    • 

used  to  designate  the  claimant. 

written  instru-       When   a    blank  is   left  in    a  written  agroenieut,  which  need  not 
ments.  have  been  reduced  into  writing,  and  would  have  been  equally  bind- 

ing, whether  written  or  unwritten,  (as  if  the  agreement  were  to 
deliver  goods  to  the  amount  of  less  than  ten  pounds,  and  a  blank 
were  left  for  the  quantity  of  goods  to  be  delivered,)  in  such  a  case, 
it  is  presumed,  in  an  action  for  the  non-performance  of  the  contract 
parol  evidence  might  be  admitted,  to  show  the  quantity  for  which 
the  parlies  agreed;  for  a  memorandum  in  writing  is  not  required 
in  this  case  by  the  statute  of  frauds,  and  the  proposed  evidence 
would  not  contradict  any  part  of  the  written  agreement,  but  merely 
supply  an  omission,  where  nothing  need  have  been  expressed. (a;) 
And  where  a  written  instrument,  which  was  made  professedly  to 
record  a  fact,  is  produced  as  evidence  of  that  fact,  which  it  purports 
to  record,  and  a  blank  appears  in  a  material  part,  the  omission  may 
be  supplied  by  other  proof.  Thus,  if  a  bishop's  register  were  to  be 
produced  in  evidence  for  the  purpose  of  showing  a  presentation  by 
a  patron,  under  whom  the  plaintiff  claims,  and  on  the  production 
of  the  register,  a  blank  should  appear  in  the  place,  where  the  pat- 
ron's name  is  usually  inserted,  the  presentation  might  be  proved  in 
some  other  way;(l)  as  by  a  witness  who  was  present,  and  heard 
the  presentation.  So,  in  the  case  of  a  surrender  of  a  copyhold  by 
a  steward,  if  there  is  any  mistake  in  the  entry,  that  is  only 
matter  of  fact,  and  the  courts  of  law  will  in  that  case  admit 
an  averment,  that  there  was  a  mistake  either  as  to  the  lands 
or  uses. (2)  {y) 

Thirdly,  as  to  the  admissibility  of  evidence  of  usage,  to  explain 
Ullage,  to  ex-  ancient  charters  and  grants. 

plain  ancient         j^,  jj^g  construction  of  written  instruments,  vv^ords  are  to  be  un- 
grants,  &c.       derstood    according    to    their    common    and    general    acceptation 
at  the  time  when   the  instrument  was   made,    (3)   and   with   refer- 
ence to  the  nature  of  the  subject,  [z)     If  the  language  in  ancient 

(1)  Bishop  of  Jlealh  V.  Lord  Beltield,         (3)    Vaugh.    Rep.    169.      Com.    Dig 
IWils.  215.  lit.  Paiol3(A.) 

(2)  Towers  v.  Moor,  2  Vern.    98. 


(x)  See  Note  050,  p.  1394.  {y)  See  Note  951,  p.  1395.  (s)  See  Note  952,  p.  1395. 


Sect.  1.]         To  explain  Written  Instruments.  541 

charters  is  become  obscure  from  its  antiquity,  or  the  construction  is 
doubtful,  the  constant  and  immemorial  usage  under  the  instrument 
may  be  resorted  to  for  the  purpose  of  explanation, (1)  though  it  can 
never  be  admitted  to  control  or  contradict  the  express  provisions  of 
the  instrument.  Such  continued  usage  is  a  strong  practical  expo- 
sition of  the  meaning  of  the  parties.  And  modern  usage,  of  forty 
or  fifty  years  duration,  is  evidence  not  only  for  that  period,  but  ev- 
idence from  which  it  may  be  presumed,  if  nothing  is  shown  to  the 
contrary,  that  the  same  course  was  pursued  in  earlier  limes. (2) 
Even  in  the  case  of  an  act  of  parliament,  universal  usage  has  been 
referred  to  as  a  proper  expositor,  where  the  language  is  doubt- 
ful. (3)  (a)  Lord  Coke,  in  commenting  on  the  statute  of  Glouces- 
ter, says,  that  when  any  claimed  before  the  justices  in  eyre  any 
franchises  by  ancient  charter,  if  the  words  were  general,  and  a 
continual  possession  was  pleaded  of  the  franchises  claimed,  or  if 
the  claim  was  by  old  and  obscure  words,  and  the  party  in  pleading 
expounded  them  to  the  court,  and  averred  continual  possession 
according  to  that  exposition,  the  entry  was  ever,  inquirator  super 
possessionem  etusum;  "  and  this,"  adds  Lord  Coke,  "  I  have  obser- 
ved in  divers  records  of  those  eyres,  agreeably  to  that  old  rule, 
oplimus  interpres  rerum  tises.(4)  And  the  uniform  course  of 
modern  authorities  fully  establishes  the  rule,  that,  however  gen- 
eral the  words  of  ancient  grants  may  be,  they  are  to  be  con- 
strued by  evidence  of  the  manner,  in  which  the  thing  has  been 
always  possessed  and  used.  (5)  Thus,  on  an  information  to  set 
aside  an  election  to  a  perpetual  curacy,  it  appeared,  that  the 
impropriate  rectory,  out  of  which  the  curacy  arose,  had  been 
granted  in  trust  for  the  use  of  the  parishioners  and  inhabitants 
of  a  parish  for  ever:  on  the  part  of  the  relators  it  was  insisted, 
that  the  right  of  nomination  to  the  vicarage  ought  to  be  confined 
to  inhabitants  paying  scot  and  lot,  or  to  persons  paying   to   church 

(1)  R.  V.  Varlo,  Cowp.  248.    Gape  v.  London  v.  Long,  1    Campb.    22.     Chad 

Handley,  3   T.  R.  288,  n.     R.  v.   Bell-  v.  Tilsed,  2  Brod.  &  Bing.  406. 

ringer,  4  T.  R.  810.       R.  v.    Osbournc,  (2)    By    Richardson,   J.    2    Brod.    & 

4  East,   333.     Bailiff,    &c.  of  Tewkes-  Bing,  409. 

bury,  V.  Bricknell,  2     Taunt.  120.     R.  (3)    Sheppard    v.   Gosnold,     Vaugh. 

V.  Mayor  of  St.  Alban's,  12   East.,  550.  169;  and  see  R.  v.   Scott,  3  T.    R.  104. 

R.  V.  Mayor.Sic.  of  Stratford-upon-Avou,  (4)  2  Inst.  282. 

14  East,  348.  R.  v.  Mayor,  &c.  of  Ches-  (5)  Weld  v.    Hornby,    7    East,    199. 

ter,  1  Maule  &  Selw.    101.      Mayor  of  R.  t.  Osbourne,  4  East,  327. 


(a)  See  Note  953,  p.  1395. 


542  Of  the  Admissibililij  of  Parol  Evidence,     [Ch.  10. 

and  poor;  and  on  the  part  of  the  defendants,  that  it  extended 
to  all  house-keepers  in  general;  Lord  Hardwicke,  in  delivering 
liis  judgment,  said,  "  that  some  sort  of  limitation  was  allowed 
by  both  sides  to  have  been  jjut  by  usage  on  the  liberality  of  the 
grant,  and  that  in  the  construction  of  ancient  grants  and  deeds 
there  is  no  better  way  of  construing  them,  than  by  usage;  and 
contemporanea  exposilio  is  the  best  way  to  go  by;"  and  since 
in  this  case  there  was  evidence  of  house-keepers  having  con- 
stantly voted,  Lord  Hardwicke  held,  that  this  usage  ought  to 
prevail.  (1) 

Nor  does  it  make  any  difference  with  respect  to  the  adinis- 
sibility  of  evidence  of  immemorial  usage,  for  the  purpose  of 
explaining  and  construing  ancient  instruments,  whether  the  in- 
strument be  a  charter  granted  by  the  crown,  or  merely  a  private 
deed.  Thus,  in  the  case  of  Withnell  v.  Gartham,(2)  where 
the  question  was  on  the  construction  of  an  ancient  deed,  granting 
to  the  minister  and  churchwardens  of  a  parish  the  power  of 
appointing  a  schoolmaster,  whether  all  the  churchwardens  must 
concur,  or  whether  the  act  of  the  majority  was  sufficient,  and 
the  jury  found  the  usage  to  be  in  favor  of  the  appointment  by 
a  majority,  Lord  Kenyon,  in  speaking  of  the  usage,  and  ad- 
verting to  an  argument  which  had  been  insisted  on,  (namely, 
that  the  Court  ought  to  reject  tlie  evidence  of  usage,  because 
the  instances  proved  were  not  as  ancient  as  the  deed,  and  also 
because  usage  cannot  be  let  in  to  explain  a  private  deed,)  said, 
that  if  the  first  reason  were  sufficient  to  reject  the  usage,  it 
would  be  difficult  to  know,  how  far  such  an  objection  might 
extend.  In  many  cases  a  party  undertakes  to  j)rove  a  custom 
from  the  time  of  legal  memory;  but  that  proof  is  generally 
established  by  evidence  of  fiicts  done  at  a  much  later  period. 
And  as  to  the  second  objection,  Lord  Kenyon  said,  there  was 
no  difference  in  that  respect  between  a  private  deed  and  a  king's 
charter;  in  both  cases  evidence  of  usage  might  be  given  to  ex- 
pound them. 

(1)    The  Attorney-geneeal  V.    Parker    general  v.  Forstev,  10  Ves.  335. 
and  others,  3  Atk.  576.     The  Attorney-        (2)  6  T.  R.  388. 


Sect.   1.]  To  explain  Written  Instruments,  04"3 

Thus,  also,  in  a  late  case,(l)  in  an  action  for  entering  the 
plaintiff' 's  close,  where  the  defendant  pleaded,  that  the  close  was 
copyhold,  and  justified  under  a  grant  from  the  lord  and  by  a  com- 
mand of  the  copyholder;  in  support  of  this  plea  the  defendant 
proved,  that  the  person,  under  whom  he  justified,  and  all  those 
whose  estate  he  had,  for  a  long  course  of  years,  had  constantly 
taken  the  forecrop  of  grass  and  pasturage  from  the  close,  and  then, 
by  court  rolls  of  the  manor,  proved  admissions  to  a  copyhold  tene- 
ment "  of  three  acres  of  meadow,"  (which  was  admitted  to  be  the 
close  in  question)  but  every  other  benefit  of  the  land,  except  the 
forecrop,  had  been  enjoyed  by  those  from  whom  the  plaintiff 
claimed.  Mr.  Justice  Heath,  who  tried  the  cause,  wss  of  opinion, 
''  that,  although  the  terms  of  the  surrender  and  admission  were 
sufficiently  comprehensive  to  pass  the  soil  and  freehold,  yet,  as  in 
ancient  grants  the  legal  import  might  be  restrained  by  long  and 
concomitant  usage,  which  might  be  taken  as  evidence  of  the  ori- 
ginal intent  of  the  parties  in  making  the  grant,  so  here  the  grant 
might  be  restrained  by  the  received  usage,  and  only  pass  the  fore- 
crop,  which  would  not  carry  the  soil.""  And  the  Court  of  King's 
Bench  agreed  in  this  construction  of  the  written  evidence.  The 
terms  of  the  admissions,  they  thought,  were  not  incompatible  with 
the  plaintiff's  right,  and  might  receive  a  construction  conformable 
to  the  usage. (6} 

Courts  of  lav.',  as  well  as  courts  of  equity,  will  admit  evl-  Evidence  ns  to 
dence  of  the  situation  and  circumstances  of  the  parties,  for  the  tate^of  "a°[  ^^' 
purpose  of  assisting  them  in  putting  a  construction  on  wills,  that 
are  not  clearly  expressed.  (2)  In  the  case  of  Masters  v.  Mas- 
ters, (3)  where  the  testf.tor,  after  having  bequeathed  a  legacy 
to  the  poor  of  two  hospitals  in  Canterbury,  (naming  them,) 
bequeatlied  another  sum  in  his  codicil  "  lo  all  and  every  the 
hospitals,"  the  second  bequest  was  adjudged  not  to  be  void  for 
uncertainty,    but   to   have  been   intended   for  all   the   hospitals   in 

(1)  Stammers  V.  Dixon,  7  East,  200.  310.  6  Ves.  396.  13  Ves.  174.  15  Ves. 
Wadley  v.  Baylis,  5  Taunt.  7.52.  Lord  514.  Herbert  v.  Reid,  16  Ves.  481. 
Petre  v.  Blencoe,  4  Gwili.  1484.  Page  v.  Leapingvvell,  18  Ves.  466.    Doe 

(2)  Harris  V.  Bishop  ofLincoln,  2  P.  dem.  Chevalier  v.  Huthwaitc,  3  Barn. 
Wms.  135.    Sir  J.  Eden  v.  Earl  of  Bute,  &  Aid.  632. 

3  Bro.  Pari.  C  79.     Doe    v.   Burt,  1  T.         (3)   1  P.  Wms.  420. 
R.  701.     Selwood  v.    Mildmay,    3  Ves. 


(A)  SeeNoto  954,  p.  1396. 


5-1.4  Of  the  Admissibilitij  of  Parol  Evidence.  [Ch.   10. 

Canterbury,  as  it  appeared  in  evidence  that  the  testator  lived  in 
Canterbury,  and  had  in  his  will  taken  notice  of  two  hospitals  in 
that  city. 

It  may  often  be  of  importance  to  inquire,  what  estate  the  devi- 
sor or  grantor  had  at  the  time  of  making  his  deed  or  will;  for 
the  construction  may  vary,  in  some  cases,  according  to  the  estate 
or  quantity  of  interest  in  the  subject-matter. (1)  If  a  person  grant 
an  estate  for  life  generally  without  saying  whether  for  his  own 
life  or  for  the  life  of  the  grantee,  evidence  is  admissible  to  show, 
what  interest  the  grantor  had  in  the  premises;  for  if  he  was 
tenant  in  fee,  the  grantee  would  have  an  estate  for  his  own  life; 
but,  if  he  was  tenant  in  tail  or  for  life  only,  then  the  grantee  would 
have  an  estate  for  the  life  of  the  grantor.  (1)  (c)  Or,  if  a  testator 
bequeath  such  a  sum  in  a  particular  stock,  it  will  be  a  specific  leg- 
acy, if  he  has  that  stock  at  the  tinie;  not  specific,  if  he  has  it 
not.(l)  Evidence  is  therefore  admissible,  in  such  a  case,  to  show, 
what  was  the  state  of  property  at  the  time  he  made  his  will;  and 
the  construction  upon  the  will  is  one  way  or  the  other,  according 
to  the  result.  So,  in  the  case  of  Doe  on  the  demise  of  Freeland  v. 
Burt,  (2)  where  the  question  was,  whether  a  cellar,  for  the  recov- 
ery of  which  the  action  was  brought,  passed  under  a  lease  from 
the  lessor  to  the  defendant,  as  appurtenant  to  a  yard,  which  was 
described  in  the  lease  by  its  abuttals,  and  as  having  been  late  in 
the  occupation  of  A.;  evidence  was  adjudged  to  be  admissible,  on 
behalf  of  the  plaintiff,  to  show,  that  the  cellar  was,  at  the  time  of 
the  execution  of  the  lease,  in  the  occupation  of  another  tenant  B.: 
here  the  defendant  claimed  the  cellar,  not  as  specifically  demised, 
but  as  appurtenant  to  the  demised  yard,  upon  the  general  maxim 
of  law,  cujus  est  solum,  ejus  est  usque  ad  coslum  etad  inferos;^''  and 
the  proposed  evidence  would  clearly  show,  it  could  not  have 
been  the  intention  of  the  parties,  that  the  cellar  should  pass  by 
the  lease  to  the  defendant.  "  Where  there  is  a  conveyance  in 
general  terms,"  said  Mr.  Justice  Buller,  "  of  all  that  acre  called 
Blackacre,  every  thing  which  belongs  to  Blackacre  passes  with 
it;   and  then  the  rule  which  has  been  mentioned,   prima  facie 

(1)  See   Mr.    Justice   Bayley's  judg-     sey,  2  Brod.  &  Bing.  551. 
ment,  ia  Smith  v.  Doe   dem.    Lord   Jer-         (2)    1  Term  Rep.  701. 


(c)  See  Note  955,  p.  1398. 


Sect.   1.]     To  explain   Written  Instruments.  545 

obtains;  but   whether    parcel   or  not   of  tl)e   thing   demised,  h  al- 
ways matter  of  evidence." 

Another  case,  in  which  evidence  of  the  state  and  amount  of  the 
testator's  property  has  been  admitted,  is  the  case  of  Fonnereaux  v. 
Pointz;  (l)(c?)  where  Lord  Thmlow  received  the  evidence,  not  to 
control  a  bequest,  which  was  distinctly  and  accurately  described, 
but  because  it  was  uncertain,  upon  the  whole  context,  whether 
the  testator  meant  so  much  per  annum  or  so  much  as  a  gross  sum. 
Lord  Thurlow  decided  the  case,  as  a  case  of  ambiguity.  And  Lord 
Alvanley,  in  observing  on  this  case,  says,  (2)  "  Lord  Thurlow's  only 
doubt  was,  whether  the  parol  evidence  was  admissible  to  ascertain, 
whether  the  testator  did  not  mean  capital,  but  he  had  no  doubt  he 
must  know  all  the  circumstances  of  his  a/fatrs."(3)  In  the  construc- 
tion, hovi'ever,  of  wills  free  from  ambiguity,  the  general  rule  is,  that 
evidence  of  the  value  of  the  estate  devised,  or  of  the  amount  of  the 
testator's  property,  will  not  be  admitted  in  order  to  raise  an  argu- 
ment in  favor  of  a  particular  construction;  whatever  may  be  the 
amount,  the  general  rule  of  construction  must  prevail.  (4) 

In  the  case    of  Smith  v.   Doe   on   the   den)ise  of  the  Earl  of 
Jersey, (5)  lately  decided  by   the  House   of  Lords  on   a  writ  of 
error,  where  the  principal  question   was  on  a   clause  of  re-entry 
in  a  lease,    under  the   execution   of  a   power  in   a  deed   of  mar- 
riage-settlement, by  which  the   settler    was   authorised   to   demise 
by  indenture  such    premises   as    were   then  leased   for  lives,  &c.  in  a^power^"^" 
and  so  as  the  ancient    accustomed   rents   were   reserved,  &c.  and 
so  as  the  lease   contained   a  poicer  of  re-entry  for  non-payment 
of  the    rent    reserved,    &c.    the    House    of    Lords    determined, 
that  it   was  allowable   to   prove,   that  the   usual  and  accustomed 
form   of  leases    (by    which   the    estate,   settled  in   the    marriage- 
settlement,  had   been  demised,  as  well  before   as   after  the  date 
of  the    settlement)    had  contained,  a  conditional  proviso  of  re- 

(1)  I  Bro.  Ch.  C.  472  ;  cited  and  Covvp.  833.  Standen  v.  Standen,  2 
commented  on  by  Mr.  Justice  Bayley  in  Ves.  jun.  59.3.  Richardson  v.  Ed- 
Smith  V  Doe  dem.  Lord  Jersey,  2  Brod.  monds,  7  T.  R-  640.  Doe  v.  Dring, 
&  Bing.  552.  2    Mniile    &     Selw.    455.       Booile    v. 

(2)  3  Ves.  320.  Blundell,    1    Merivule,   216.       Jones    v. 

(3)  On  this  case  of  Fonnereau  v.  Tucker,  2  Merivale,  537.  Attorney- 
Poyntz,  see  also  3  Merivale,  319,  320.        general  v.  Grote,  3  Merivaje,  316. 

(4)  Doe    dem.    Handson    v.    Fyldes,  (5)   2  Brod.  &  Bing.  473. 


(d)  Fee  Note  956,  p.  1398. 

Vol.   L  69 


546  Of  the  Admissibility  of  Parol  EvidencOy  [Ch.   10. 

entry  similar  to  the  one  in  the  indenture,  whose  validily  was  then 
disputed.  "  This  evidence,"  said  Mr.  Justice  Bay  ley,  in  his  judg- 
ment in  the  House  of  Lords, (1)  "  is  not  admitted,  to  produce  a 
construction  contrary  to  the  direct  and  natural  meaning  of  the 
words;  not  to  control  a  provision,  wliich  was  distinct,  and  accu- 
rately described;  but  because  there  is  an  ambiguity  upon  the  face 
of  the  instrument,"  (for  the  deed  of  settlement  required  the  leases 
to  contain  a  power  of  re-entry  generally,  on  non-payment  of  rent,  and 
there  are  various  forms  of  powers  of  re-entry;)  "  because  an  indefi- 
nite expression  is  used,  capable  of  being  satisfied  in  more  ways  than 
one.  I  look  to  the  state  of  the  property  at  the  time,  to  the  estate 
and  interest  vi^hich  the  settler  had,  and  the  situation  in  which  the 
settler  stood  with  regard  to  the  property  settled,  to  see,  whether 
that  estate,  or  interest,  or  situation,  will  assist  us  in  judging  what 
the  settler  meant  by  that  indefinite  expression." (c) 

Reference,  in        Where  the  subject  of  a  devise  is  described,  by  reference  to 

the  writing,  to  .      .       _  .       .  ,  i  i       i        i 

extrinsic  fact,    some    extrmsic   fact.    It    IS  not    only  competent,    but    absolutely 

necessary,  to  admit   extrinsic   evidence  for  ascertaining  that   fact, 

and,  through  that  medium,  to  ascertain  the  subject  of  the  devise. 

This  is  not   done  with  a   view  to   explain   the  will,  or  add   to  its 

contents.      The  evidence  is  intended    only  to  ascertain  what  is 

included  in   the   description   which  the  testator  has  given  of  the 

thing  devised.      When   there  is   a  devise  of  an   estate  purchased 

by  A.,  or  of  a  farm  in    the  occupation  of  B.,  it  must    be  shown 

by  extrinsic  evidence,  what  estate   it  was  that  A.   purchased,  or 

what  farm  was  in  the   occupation  of  B.,  before  it  can  be  known 

what  is  devised.  (2)      So,  where  a  testator  made  a  direction  in  his 

will,  respecting  a   certain   payment   for  a  house,  which  amounted 

in  effect  to  a  devise  of  so  much  of  the  produce  of  timber,  ordered 

to  be  cut  down,  as  should   be  sufficient  to  pay  for  the  house,  the 

Master    of    the  Rolls  held,   that    there  was  nothing    in    the    fait 

referred    to,     (namely,    an    antecedent    order   for    cutting    down 

timber)    which  could  justly  make  it    less  a  subject  of   extrinsic 

evidence,    than    the  facts  in  the  other  cases    above  alluded    to. 

The    moment    it  is   shown    that  it  was  a  given  number  of  trees, 

or    a    quantity    of    trees  amounting  to    a    certain    fixed    value, 

(1)  2  Brod.  &    Bing.    553.     5  Barn.  (2)   1    Merivale,    653,    by    Sir    W. 

&  Aid.  387.  Grant. 

(e)  See  Note  957.  p.  1399. 


Sect.  2.]    to  vary  or  discharge  Written  Instruments.  547 

on  a  certain  estate,  that  the  testator  had  ordered  to  be  cut 
down,  the  subject  of  the  devise  is  rendered  as  certain  as  if  the 
number,  value  or  situation  of  the  trees  had  been  specified  in  the 
will.(l)(/) 

It  appears  from  some  of  the  cases  above  cited,  thai  the  vv^ords 
of  an  instrument,  in  themselves  conveying  a  general  right  to  an 
estate,  may  in  certain  cases  be  limited  and  restrained  by  the 
manner  in  which  the  estate  has  for  a  length  of  time  been  ac- 
tually enjoyed.  But  in  the  construction  of  a  legal  instrument  Covenant  not 
where  the  question  is,  whether  a  party  is  bound  by  his  covenant  by  ihrpany*i 
to  do  a  certain  act,  (as,  for  example,  to  grant  a  renewal  of  a  acts, 
lease,)  courts  of  law  will  not  consider  the  acts  of  the  parties  or 
their  interpretation  of  the  instrument.  In  one  case,  indeed, 
where  it  was  doubtful,  whether  a  covenant  for  renewal  extended 
to  a  perpetual  renewal,  and  the  parties  had  renewed  four  times 
successively,  the  Court  of  King's  Bench  held,  tliat  the  legal 
effect  was  a  perpetual  renewal,  on  the  ground  that  the  parties 
themselves  had,  by  their  own  acts,  put  a  construction  on  the  cove- 
nant, and  that  the  Court  could  not  say  the  contrary.  (2)  But  this 
case  has  been  frequently  disproved  of, (3)  and  a  different  rule  is 
now  established.  "  It  cannot  be  a  legal  mode  of  construction 
(said  the  Master  of  the  Rolls,  in  a  case  of  this  kind,)  that  a  party 
who  has  done  an  act,  which  he  was  not  bound  to  do,  or  from  a 
mistake,  should  therefore  be  bound  forever  without  the  power  of 
retracting.  "(4)  {g) 

Sect.  II. 

Of  the  Mmissibilily  oj  Parol  Evidence  to  vary  or  discharge  Writ- 
ten Instruments. 

It  is  a  general  rule  of  law,  that  parol  evidence  cannot  be  admit- 
ted to  contradict,  add  to,  or  vary  the  terms  of  a  will,  deed,  or  other 
written  instrument.     First,  with  respect  to  wills; 

(1)  Sandford  V.  Raikes,  1  Merivale,  Igguldcn  v.  May,  9  Ves.  333.  7  Bos. 
646,  658.  &  Pull.  New  Rep.  452.     S.    C.    Clifton 

(2)  Cooke  V.  Booth,  Cowp.  819.  v.  Walmsley,  5  T.  R.  566. 

(3)  Baynham   v.    Guy's   Hospital,  3         (4)  Moore  v.  Foley,  6  Ves.  238. 
Ves.  498.     Eaton  v.  Lyon,  3  Ves.    694. 

(/  )  See  Note  958,  p.  1420.    (g)  See  Note  959.  p.  1425. 


548  Of  the  Admissibility  of  Parol  Evidence,  [Ch.  10. 

Wills.  The  statutes  of  the  32d  and  34th  of  Henry  VIII.,  which  gave 

the  power  of  devising  lands  by  a  last  will  and  testament  in  writing, 
must  clearly  have  intended,  that  what  ever  is  effectual  and  to  the 
purpose,  ought  to  he  in  writing,  and  sufficient  without  the  aid  of 
words  not  written;  and  therefore  no  parol  evidence  of  the  testator's 
intention  can  be  adnnitted  to  control  or  enlarge  the  terms  of  the 
vvill.(l)  An  additional  reason  for  this  rule  is  supplied  by  the  stat- 
ute of  frauds,  which  enacts,  that  all  devises  of  lands,  &c.  must  be 
in  writing,  and  are  not  revocable  except  by  some  other  will  or  cod- 
icil, or  by  some  act,  as  cancelling,  &c.  And  with  regard  to  wills 
of  personal  property,  it  is  evident  from  the  22d  section  of  the  stat- 
ute of  frauds,  that  no  unwritten  declaration  of  the  testator  can  be 
admitted  to  vary  any  bequest;  for  that  section  enacts,  "  that  no 
will  in  writing  concerning  goods,  chattels,  or  personal  estate,  shall 
be  repealed,  and  that  no  clause  shall  be  altered  or  changed,  by  any 
words  or  will  by  word  of  mouth  only,  except  the  .same  be  in  the 
lifetime  of  the  testator  committed  to  writing,  and  after  the  writing 
read  to  the  testator,  and  allowed  by  him,  and  proved  to  be  so  done 
by  at  least  three  witnesses. (2)  {h) 

Parol  evidence  is  not  admissible  to  contradict,  or  vary  or  add 
to,  the  terms  of  a  deed. (3)  "  It  would  be  inconvenient,"  says 
Lord  Coke,  "  that  matters  in  writing,  made  by  advice  and  on 
consideration,  and  which  finally  import  the  certain  truth  of  the 
agreement  of  the  parties,  should  be  controlled  by  an  averment 
of  parties,  to  be  proved  by  the  uncertain  testimony  of  slippery 
memory;  and  it  would  be  dangerous  to  purchasers  and  all  others 
in  such  cases,  if  such  made  averments  against  matter  in  writing 
Nature  of  should  be  admitted. (i)  In  an  action  of  debt,  therefore,  on  a 
bond.  bond  conditioned  to  pay    a    sum  of   money    on  a    certain    day, 

the    defendant  cannot  ."-how,  that    the  bond  was  intended    as  an 

(1)  Brett   V.    Rigden.    Plovvd.    Com.      Cambridge  v.  Rous,  8  Ves.  22. 

345.     Lord  Cheney's  cnse,  5   Rep.    68.  (3)'Countes.s  of  Rutland's  case,  5  Rep. 

Bertie  v.  Lord    Falkland,    1    SalU.    231.  1:6.     For  examples,  see  Buckler  v.  Mill- 

2  Vern.  333,  S.  C.    Stevenson  v.  Heath-  erd,  2  Ventr.  107.  Tinney  v-    Tinney,  3 

cote,  1  Eden.  38.  Gall  v.  Croft,  1    Dick-  Atk.  8.     1    Will.s.    34.  Lord    Irnham  v. 

ins,  23.     1  Brown's  C.  C.  84.     Mahank  Child,  1  Dickins,  554.    Brydges  v.  D.  of 

V.    Brooks,    1    Dickins,    577.     Eden    v.  Chandos,  2  Ves.  417.     Haynes  v.  Hare, 

Smith,  5  Ves.  341.     8  Ves.  22.    13  Ves.  1  H.  Black.   659      Cliflon  v.  VValmslay, 

376.     Herbert  v.  Reed,  16  Ves.  481.  5  T.  R.  567.     Ex  parte  Hooper,  2  Rose 

(2)  Brown  v.    Selwin,    Forrest.  240.  B.  C  828. 
Lowfield    V.   Stoneham,    2    Stra.    1261. 


(A)  See  Note  960,  p.  1425.     (i)  See  Note  961,  p.  1428. 


Sect.  2.]     to  vary  or  discharge  Written  Instruments.  549 

indemnity   against   another  bond.  (1)  (j)      A  deed  of  assignment,  Consideration- 

which  is  expressly  alleged  in  the  body  of  the  deed,  to  be  made  in 

consideration  of  a  certain  sum  of  money  paid    down  at  the  time  of 

the  execution,  estops   the  assignor  from  showing   that   no   money 

passed. (2)      A  memorandum,  indorsed  on  the  deed,  of  the  receipt  Receipt  in- 

of  the  money,  is   of  a  different    description,   and,  not  being  under  dorsed. 

seal,  will  not  amount  to  an  estoppel,  but  is  evidence  for  the  jury, 

capable  however  of  being  rebutted  by   the  other   circumstances  of 

the  case.  (3)  (k) 

In  an  action  on  a  bond  a  party  will  not  be  permitted  to  show  l.  Proof  of  an- 
a  condition,  different  from  that  expressed  in  the  bond;  and  a  ^jj^j,  °°^'  ^'^' 
conveyance  cannot  be  averred  by  parol  to  be  to  another  use  or 
intent  than  that  expressed  in  the  conveyance.  But  there  is  a 
difference  in  this  respect  between  an  use  and  a  consideration. 
It  is  an  established  rule,  that  a  party  may  aver  another  consider- 
ation, which  is  consistent  with  the  consideration  expressed;  but 
no  averment  can  be  made  contrary  to,  or  inconsistent  with,  that 
expressed  in  the  deed.  (4)  Thus,  if  a  deed  of  bargain  and  sale 
is  expressed  generally  to  be  made  "  for  divers  good  considera- 
tions," it  may  be  averred,  that  the  bargainee  gave  money  or  oth- 
er valuable  consideration.  (5)  That  such  an  averment  may  be 
taken,  which  stands  with  the  deed,  says  Lord  Coke,  although 
it  be  not  expressly  comprised  in  the  deed,  is  proved  by  the 
case  of  Villers  and  Beamont,  (6)  where  the  consideration  in  a  deed 
of  bargain  and  sale  of  lands  was  stated  to  be  a  sum  of  money, 
but  it  was  averred  and  found  by  the  jury,  that  the  indenture 
was  made  "  as  well  in  consideration  of  marriage  (to  make  it 
a  jointure  in  bar  of  dower)  as  of  the  said  sum  of  money;"  and 
it  was  adjudged,  that,  although  there  was  a  particular  consid- 
eration mentioned  in  the  deed,  yet  an  averment  might  be  made 
of  another   consideration,    which   stood   with   the   indenture,  and 

(1)  Mease    v.    Mease,   Cowper,    47.     Cromwell's  case,  2    Rep.    76.     Bedell's 
Fitzgibb.  75.  case,  7  Rep.  38.     Willes,  677.   17  Ves. 

(2)  Rowntree   v.   Jacob,    2    Taunt.     192. 

141.     Lampon    v.    Corke,     5   Barn.    &  (5)  2  Roll.    Abr.  786,  (N).     1  Rep. 

Aid.  606.     Baker  v.    Dewey,    1  B.  Cr.  176. 

707.  (6)  2  Dyer,  146,   a.    Vernon's   case, 

(3)  5  Barn.  &  Aid-  611.  4  Rep.  3,  S.  P.     And  see  Craythorno  v. 

(4)  2    Roll.    Abr.  786,    (N),    pi.  1.  Swinburne,  14  Ves.  170. 
Mildmay'a   case,    1    Rep.     176.      Lord 


(;■)  See  Note  962,  p-  14B7.     {k)  See  Note  963,  p.  1437. 


550  Of  the  Admissibility  of  Parol  Evidence,     [Ch.  10. 

which  was  not  contrary  to  it.*  A  fortiori,  adds  Lord  Coke,  the 
averment  may  be  made,  where  no  consideration  is  mentioned,  but 
the  deed  is  general,  "  for  divers  good  considerations;"  for  then  the 
averment  (that  the  bargainee  gave  money,  &c.)  is  but  an  explana- 
tion and  particularising  of  the  general  words  of  the  deed,  which  in- 
clude every  manner  of  consideration;  and  in  all  these  cases,  the 
matter  so  averred  is  traversable  and  issuable.  And  Lord  Hard- 
wicke  has  held,  that  where  no  consideration  is  expressed  in  the 
deed,  a  party  claiming  the  benefit  of  a  trust  under  the  deed,  may 
prove  a  valuable  consideration.  (1)  Q) 

In  a  case  of  settlement  also,  where  the  question  was,  whether  a 
settlement  had  been  gained  by  the  purchase  of  an  estate  within 
the  statute  9  G.  1,  c.  7,  s.  5,  parol  evidence  was  adjudged  to  be 
admissible,  to  show,  that  the  parties,  after  having  agreed  upon 
twenty-eight  pounds  as  the  purchase  money,  (which  was  the 
consideration  expressed  in  the  deed  of  conveyance)  made  a  sub- 
sequent unwritten  agreement  before  the  execution  of  the  deed, 
that  the  consideration  should  be  increased  to   thirty   pounds,  and 

(1)  Peacock  v.   Monk,  1  Ves.  12S. 

*  In  the  case  of  Villiers  and  Beamont,  above  cited.  (2  Dyer,  146,  a.)  an 
elaborate  argument  is  to  be  found  in  support  of  the  position,  that  "  where  a 
consideration  is  expressed  in  a  deed  of  gift  or  grant,  no  other  cause  can  be 
averred;  but,  if  no  cause  is  expressed,  that  a  cause  may  then  be  averred 
out  of  the  deed."  The  report  adds,  "  that  three  Judges  argued  to  the  con- 
trary, and  that  the  effect  of  that  which  is  found  by  the  assignment  of,  '  as 
well  in  consideration  of  the  said  marriage,  &c.  as  of  the  sum,'  &c.  is  contain- 
ed within  the  indenture,  and  so  their  finding  is  not  contrary  to  it."  In  the 
case  of  Peacock  v.  Monk,  (1  Ves.  128,)  Lord  Hardwicke  makes  the  same 
distinction.  A  bill  in  that  case  was  filed,  claiming  the  benefit  of  a  trust  un- 
der a  deed,  and  the  point  was,  whether  the  plaintiff  could  prove  a  valuable 
consideration,  as  no  consideration  was  expressed  in  the  deed.  Lord  Hard- 
wicke held,  that  the  proof  ought  to  be  read.  "  It  differed,"  he  said,  "  from 
the  common  case,  upon  which  the  objection  is  founded;  for,  to  be  sure,  where 
any  consideration  is  mentioned,  as  of  love  and  affection  only,  if  it  is  not  said 
also,  '  for  other  considerations,'  you  cannot  enter  into  proof  of  any  other; 
the  reason  is,  because  it  would  be  contrary  to  the  deed;  for  when  the  deed 
Bays,  it  is  in  consideration  of  such  a  particular  thing,  that  imports  the  whole 
consideration,  and  is  negative  to  any  other.  But  this  is  a  middle  case,  there 
being  no  consideration  at  all  in  the  deed."  All  the  authorities  agree,  that, 
where  the  deed  is  not  impeached  for  fraud  or  other  illegal  matter,  no  consid- 
eration can  be  averred  or  proved  contrary  to  that  expressed  in  the  deed; 
and  further,  ihe  cases  referred  to  in  the  text  appear  to  have  established,  that 
it  is  not  considered  to  be  contrary  to  or  inconsistent  with  a  deed,  to  prove  another 
consideration  in  addition  to  the  consideration  expressed. 

(/)  See  Note  964,  p.  1441. 


Sect.  2.]  to  vary  or  discharge  Written  Instruments.  651 

that  the  latter  sum  was  actually  paid.  (1)  Here  the  object  of  the 
proposed  evidence  was  not  to  contradict  the  indenture,  but  to  as- 
certain an  independent  collateral  fact,  namely,  whether  thirty 
pounds  had  been  bona  fide  paid ^  as  a  consideration  for  the  purchase 
of  the  estate,  upon  which  fact  the  settlement  would  depend,  (m) 

The  sreneral  rule  is,  that  a  party   to  a  deed   will   be  precluded  2.  Proof  of  dif- 
,         .  ...  ...  1        .  ferent  conside- 

from  showmg  a  condition  or  consideration  contrary  to  what  is  ex-  ration,  in  cases 

pressed  in  the  deed,  (n)     An  exception,  however,  is  always  to  be  of  frau*!.  &c. 
made,   where   the  consideration  has  been   illegal,  as  for   simony, 
usury,  compounding  of  felony,  &c.  (2)  (o)      In  an   action  of  debt  Usury, 
upon  a  bond,  the   defendant  may  plead,  that  the   bond   was  given 
for  an   usurious  consideration,  though  a   different  and  a  legal  con- 
sideration may  be  recited.  (3)  (p) 

When  fraud  is  imputed,  the  parly  insisting  on  the  fraud  may  Fraud, 
prove  any  consideration,  however  contrary  to  the  averment 
in  the  deed,  to  show  the  fraudulent  nature  of  the  transac- 
tion, {q)  Thus,  where  the  considerations,  mentioned  in  the  deed,  Considera- 
were  ten  thousand  pounds  and  natural  love  and  affection,  the 
lords  commissioners  of  the  great  seal  directed  an  issue  to  try 
whether  natural  love  and  affection  formed  any  part  of  the  con- 
sideration, the  estates  conveyed  by  the  deed  being  worth  thirty 
thousand  pound.  On  an  appeal,  this  was  confirmed;  and  the 
jury,  on  the  trial  of  this  issue,  finding  that  natural  love  and 
affection  constituted  no  part  of  the  consideration,  the  deed  was 
afterwards  set  aside  by  the  Court  of  Chancery.  (4)  So,  when  the 
question  is,  whether  a  person  has  gained  a  settlement  in  a  par- 
ish by  purchasing  an  estate,  wiiiiin  the  statute  9  G.  1,  c.  7,  s.  5, 
evidence  is  admissible,  to  show,  that  less  than  thirty  pounds  was 
the  consideration,  though  the  deed  of  conveyance  may  express 
a  greater   consideration;  for   that  act   of  parliament  says,  that  no 

(1)  R.  V.  Scammonden,  3  T.  R.  A  deed  may  be  avoided  on  the  ground  of 
474,  cited  in  Rich  v.  Jacltson,  6  Ves.  fraud:  but  then  the  objection  is  not  to 
337,  n.  come  fiom    one  who  is  party    or  privy  to 

(2)  Buckler  v.  Millerd,  2  Ventr.  107.  it;  for  no  man  can  allege  his  own  fraud, 
Collins  V.  Blantern,  2  Wils.  347.  Bull,  in  order  to  invalidate  his  own  deed.  3 
N.  P.  173.     Paxton  v.  Popham,   9  East,  Barn.  &  Aid.  369. 

408.  (4)  Filmer  v.  Gott,  4  Bro.   Pari.  C. 

(3)  Buckler  v.  Millerd,  2  Ventr.  107.     234,  2d  edit. 

(m)  See  Note  965,  p.  1444.  (n)  See  Note  966,  p.  1445.  (o)  See  Note  967,  p. 
1445.     {p)  See  Note  968,  p.  1447.     (3)  See  Note  969,  p.  1448. 


Will. 


562  Of  the  Admissibility  of  Parol  Evidence^  [Ch.  10. 

person  shall  gain  a  settlennent,  &c.  by  virtue  of  any  purchase,  un- 
less the  consideration  for  such  purciiase  shall  amount  to  the  sum 
of  thirty  pounds  bona  fide  paid.  {\){r). 

Fraud.  For  the  purpose   of  setting  aside   a  will  on  the  ground  of  fraud, 

parol  evidence  may  be  given  of  what  passed  at  the  time  of  the 
testator's  signing,  and  what  the  testator  said;  as  in  the  case  of 
Doe  on  the  demise  of  Small  v.  Allen, (2)  where  it  was  proved,  that 
the  testator,  at  the  time  of  the  execution,  asked,  whether  the  con- 
tents of  the  will  were  the  same  as  those  of  a  former  will,  the  an- 
swer to  which  was  in  the  affirmative,  when  in  fact  the  contents 
were  different. (s)  So,  where  indentures  or  other  writings  are  not 
available  in  evidence,  unless  the  consideration  paid  or  contracted 
for  is  truly  stated,  it  may  be  proved,  that  a  greater  sum  than  is 
mentioned  was  actually  paid,  or  that  the  writing  does  not  contain 
the  whole  of  the  agreement,  but  that  some  of  the  terms  of  the 
agreement  were  omitted,  for  the  purpose  of  evading  the  provisions 
of  the  stamp  acts.  In  these  and  similar  cases,  the  general  reason 
against  admitting  parol  evidence  will  not  apply;  the  danger  is, 
not  that  the  admission  of  such  evidence  would  introduce  fraud  or 
uncertainty,  but  that  fraud  would  be  assisted  by  its  exclusion,  the 
whole  object  of  the  evidence  being  to  expose  and  defeat  a  secret 
fraud. 

But  although  a  party,  who  impeaches  a  deed  for  fraud,  may 
prove  a  different  consideration,  the  party,  charged  with  the 
fraud,  will  not  be  allowed  to  prove  any  other  consideration  in 
support  of  the  instrument.  Thus,  where  a  bill  was  filed  to  set 
aside,  as  fraudulent,  a  conveyance,  expressed  to  be  made  in  con- 
sideration of  an  annuity,  and  on  the  part  of  the  defendants  it  was 
objected,  that  the  grantor  of  the  estate  had  often  declared,  "he 
would  rather  that  his  kinsman,  one  of  the  defendants,  should 
have  the  estate  in  consideration  of  this  annuity,  than  any  other 
person  for  a  more  valuable  consideration,  and  that  he  was  willing 
to  give  the  premises  to  his  kinsman;"  the  Master  of  the  Rolls, 
after  stating,  that  the  deed  and  the  answer  had  put  the  defence 
on  another  ground,  declared,  that  it  would  be  of  mischievous 
consequence,   and  liable    to   the  danger  of    perjury,   which    the 

(1)  R.  V.  Mattingly,  2  T.  R.  12  R.     (2)  8  T.  R.  147. 
V.  Olncy,  1  Manle  &  Selw.  387. 

(r)  See  Note  970,  p.  1451.     («)  See  Note  971,  p.  1461. 


Sect.  2.  J  to  vary  or  discharge  Written  Instruments,  553 

statute  of  frauds  intended  to  prevent,  to  suffer  parol  evidence  to 
prove  blood  and  kindred  to  have  been  the  consideration  of  this  con- 
veyance. (I)  (/) 

As  a  deed  takes  effect  from  the  time  of  delivery,  not  from  the  3.  Proof  of  de- 
time  of  the  date,  it  may  be  proved  to  have  been  delivered  either  be-  a7^a^  differeot 
fore  or  after  the  day,  when  it  purports  to  have  been  made.     In  an  '''"®- 
action  of  debtupon  a  bond,  the  plaintiff  may  declareon  a  bond  bear- 
ing date  on  a  certain  day,  and  prove  the  delivery  on  another  day ;  (2) 
or  may  state  in  his  pleading,  that   the   deed   was  intended,  made, 
and  concluded,  on  a  different  day,  from  that  on  which  the  deed  it- 
self professes  to  have  been  indented  and  concluded.  (3)  (w) 

Extrinsic  evidence   may  sometimes  be   admitted   to  establish  a*-^''*'^^''''.°'"' 

"^  lomary     right, 

customary  right  between  a  landlord  and  tenant,  though  such  cus-  not    expressed 

tomary  right  is  not  expressed  in  the  deed  or  lease,  provided  that  '"    ^^  ' 

it  is  not   inconsistent  with   any   of  the  stipulations.     Thus,   it  may 

be  shown,  that  a  heriot  is  due  by  custom  on  the   death  of  a  tenant 

for  life,  though  not  expressed  in  the  lease.  (4)      And    a  lessee    by 

deed  may   be   entitled   to   an  away-going  crop   by   the  custom  of 

the  country,  though  no  such  right  is  reserved  by  the  deed.      This 

was   determined    in    the  case    of  Wigglesworth   v.   Dallison,  (5) 

which  was  an  action  of  trespass  for  cutting  down  corn,  which  the 

plaintiff  claimed  as  his  away-going  crop   after  the   expiration   of  a 

lease  by  deed.      The  jury  found  the  existence  of  the  custom;  and 

it  was    afterwards    moved,    in    arrest  of  judgment,    that    such    a 

custom  was  repugnant  to   the  deed;  and   to  that   effect  a  case  was 

cited,  which  had  been  determined  ten  years  before  by  Mr.  Justice 

Yates.     But  the  Court   of  King's  Bench  held,    that   the  custom 

was  not  repugnant.     They  considered  such  a  customary  right  as 

consequential  to  the  taking,  in  the  same  manner  as   a  heriot    may 

be  due  by    custom,  though  not    mentioned  in  the  grant    or  lease. 

The  right  was  entirely  collateral,  and  not  excluded   by  the   deed, 

(1)  Clarkson  v.  Hanway,   2  P.  Wms.         (4)  Per   Cur.    in  White   v.     Sayer, 
203.       2    Schoal.  &     Lef.    501.       Doe     Palm.  211. 

dem.    Roberts  v.    Roberts,    2    Barn.   &  (5)    I  Doug.     201.       This     judgment 

Aid.  368.  was  atFii-med    in    the  Exchequer   Cham- 

(2)  Goddards      case,    2    Rep.     4  b.  ber-       As    to  this     case,    see    ITuges    v. 
(.3)  Stone  v.  Bale,    3   Lev.  34S.  Hall  Gordon,  1    Bligh,     287,  and   Clinan   v. 

V.  Cazenove,  4  East,  477.  Cooke,  1  Schoal.    &  Lef  22. 

(i)  See  Note  972,  p.  1451.     (u)  See  Note  973,  p.  1453. 

Vol.   T.  70 


654 


Of  the  Admissibility  of  Parol  Evidence^     [Ch.  10. 


which  contained  no  stipulation  whatever  applicable  to  the  sub- 
ject. (1)  But  where  the  lease  contains  a  covenant,  w!)ich  in  ex- 
press terms,  or  by  plain  and  necessary  implication,  excludes  the  cus- 
tomary right,  there  the  benefit  of  the  custom  is  waived,  and  cannot 
be  claimed  consistently  with  the  stipulations  of  the  lease.  (2)  (r) 

B.  Evidence  A  demise  of  lands  by  deed, 'to  comxnence  {xom  Michaelmas-day , 

tovarythTtime  niust  be  understood  to  be  from  New  Michaelmas,  since  the  act  of 
of  holding.  Parliament  for  altering  the  style  unless  there  is  some  refference  in 
the  deed  to  a  prior  holding  from  Old  Michaelmas^  to  show  what 
the  parties  intended  by  using  generally  the  term  Michaelmas- day. 
The  general  term,  Michaelmas,  being  thus  fixed  by  law  to  mean 
New  Michaelmas,  and  nothing  appearing  in  the  deed,  from  which 
a  different  use  of  the  term  can  be  presumed,  no  parol  evidence  can 
be  received  to  explain  the  time  of  holding  stated  in  the  deed.  (3) 
But  if  the  holding  has  been  from  Michaelmas-day  to  Michaelmas- 
day,  or  from  Lady-day  to  Lady-day,  under  a  parol  lease,  and  no 
evidence  is  produced,  on  the  part  of  the  plaintiff",  to  show,  whether 
the  parties  intended  the  New  Lady-day,  or  the  Old,  in  such  a  case 
evidence  is  admissible,  on  the  part  of  the  defendant,  of  the  custom 
and  usage  in  the  country,  that  such  holdings  are  always  under- 
stood to  be  from  Old  Lady-day.  (4)  (w)  And  in  the  case  of  old  pa- 
rol tenancies  from  year  to  year,  where  the  time  of  entry  cannot  be 
ascertained,  and  where  the  receipts  of  rent  have  been  general,  such 
evidence  seems  not  unreasonable. 


Policies  of  insurance  are   within    the    same    rule,    and    cannot 


Policies  of  in- 

flurance. 

Charter-par-     be  contradicted    or    varied    by    any    written    agreement   made  by 

the  parties  before   the   time  of  signing    the    policy.       Thus,  in  an 


ties. 


(1)  The  case  of  Senior  v.  Armitage, 
Holt's  N.  p.  C  197,  is  another  in- 
stance. 

(2)  Webb  V.  Plummer,  2  Barn.  & 
Aid.  746. 

(3)  Doe  dem.  Spicer  v.  Lea,  11 
East,  312.  In  this  case,  the  tenant 
first  held  from  O'd  Michaelmas  by 
parol,  then  took  a  lease  by  deed  from 
Michaelmas,  and,  after  the  expiration 
of  that  lease,  held  on  wi;hout  any 
new  agreement. 

(4)  Such  evidence  was  admitted  by 
Lord  Kenyon,  in  the  case  of  Furley 
dem.   Mayor  of    Canterbury  v.    Wood, 


1  Esp.  198,  cited  by  counsel  in  Doo 
V.  Lea,  11  East,  312.  Upon  its  be- 
ing cited,  the  Court  asked  whether 
the  lease  was  by  deed.  The  report 
does  not  state  that  fact.  This  case 
of  Furloy  v.  Wood  wa."?  ciied,  and 
approved  of  by  the  Court  of  King's 
Bench,  in  Doe  dem.  Hall  v.  Benson, 
4  Barn.  &  Aid.  5SS,  which  warrants 
the  position  in  the  text.  The  Court 
of  King's  Bench  made  a  distinction, 
in  the  litter  case,  between  leases  by 
deed  and  leases  by  farol.  And  see 
Doe  dem.  Peters  v.  Hopkinson,  3 
Dow.  &i  Ryl.  507. 


(v)  See  Note  974,  p.  1454.     {w)  See  Note  975,  p.  1457. 


Sect.  2.]     to  vary  or  discharge  Written  Instruments,  555 

early  case,  where  in  an  action  on  a  policy  of  insurance  from  Arch- 
angel to  Leghorn,  the  defendant  attempted  to  show,  that  the 
agreement  before  the  subscription  of  the  policy  was,  that  the  adven- 
ture should  begin  only  from  the  Downs,  the  Court  would  not  ad- 
mit the  evidence.  (1)  Lord  Chief  Justice  Pemberton  in  that  case 
said,  that  policies  were  sacred  things,  and  that  a  merchant  should 
no  more  be  allowed  to  go  from  what  he  had  subscribed  in  them, 
than  he  who  subscribes  a  bill  of  exchange,  payable  at  such  a  day, 
shall  be  allowed  to  go  from  it,  and  say,  it  was  agreed  to  be  on  con- 
dition, &c.,  when  it  may  be  that  the  bill  had  been  negotiated;  for 
though  neither  of  them  are  specialties,  they  are  of  great  credit,  and 
much  for  the  support  and  advantage  of  trade.  The  same  rule  of 
course  applies  to  charter  parties.  In  a  case  where  a  ship  was 
chartered  to  wait  for  convoy  at  Portsmouth,  Lord  Kenyon  would 
not  suffer  a  parol  agreement  to  be  set  up  on  the  other  side  to  sub- 
stitute Corunna  for  Portsmouth.  (2) 

In  an  action  on  a  promissory  note  or  bill  of  exchange,  the  defend-  P''o™'"wy 
ant  will  not  be  allowed  to  give  evidence  of  an  agreement  between 
him  and  the  plaintiff,  at  the  time  of  making  the  note,  that  it  should 
be  renewed,  and  that  payment  should  not  be  demanded  on  its  be- 
coming due. (3)  Nor  is  a  parol  evidence  admissible  to  show,  that  a 
note,  puporting  to  be  payable  on  demand,  was  intended  by  the  par- 
ties to  be  payable  only  on  a  contingency  ;(4)  or  that  a  note,  payable 
on  a  certain  day,  was  intended  to  be  payable  on  some  other  day.  (5)  .. 
That  the  note  was  given  on  an  illegal  consideration  may  certainly 
be  proved,  for  a  reason  before  mentioned; (6)  but  no  parol  evidence 
can  be  received  inconsistent  with  the  terms  of  the  note,  (a;)  The 
usage  in  a  public  office,  from  which  the  note  or  bill  issues,  will  not 
be  allowed  to  control  the  legal  import  of  the  instrument.  (7)  (i/) 

(1)  Kaines   v.     Knightly,   Skin.    54.         (4)  Rawson   v.  Walker,    1    Starkie, 
S.  C.  referred  to  in  Bates  v.   Grabham,     N.  P.  C.  361.     VVoodbridge  v.  Spooner, 

2  Salk.  444,  but  misstated.     Weston  v.     3  Barn.  &  Aid.  233. 

Ernes,  1  Taunt.  115.     Uiide  v.  Walters,         (5)  Free  v.  Hawkins,  1  Moore'a  Rep. 

3  Campb.  16.  C.  P.  533.     8  Taunt.  92,  S.  C. 

(2)  Leslie   v.    De  la  Torre,  cited    12         (6)  See  ante,  p.  550. 

East,  583.  (7)  Hogg  v.  Snailh,  1  Taunt.  347. 

(3)  Hoare  v.  Graham,  3  Campb   57. 
Hogg  V.  Snaith,  1  Taunt.  347. 


{x)  See  Note  976,  p.  1458.     (y)  See  Note  977,  p.  1462. 


556  Of  the  Admissibility  of  Parol  Evidence,  [Ch.  10. 

Contract  for  In  the  Case  of  contracts  of  hiring  also,  between  masters  of  ships 

eeanien's  ,  /  i  i      i  i-  11  1       •  •  • 

wa^es.  snc'  seamen,  (though  they  are  directed  by  statute  to  be  in  writing, 

under  a  penalty  to  be  inflicted  on  the  master,  and  it  has  not  been 
decided  that  they  are  void  if  unwritten,)  still,  when  once  reduced 
into  writing,  they  cannot  be  varied  or  added  to  by  parol.  Thus,  it 
was  ruled  in  the  Court  of  Common  Pleas,  that  a  mate  in  a  slave- 
ship  could  not,  on  the  ground  of  a  verbal  promise,  claim  the  per- 
quisite of  the  price  of  .a  negro  slave  beyond  the  wages  due  to  him 
by  certain  written  articles  of  agreement,  executed  between  the 
master,  officers,  and  crew.(l)(z) 

Usnge  of  iiier-      However,  it  has  been  long  determined  by  a  variety  of  cases,  that 

chants,  to  ex-  .  ,  .  , 

plain  mercan-  mercantile  contracts,  such  as  policies  ol  insurance,  charter-parties, 
tile  contracts.  ^^^^  others  of  a  like  nature,  are  to  be  construed  conformably  with 
the  usage  and  custom  of  merchants.  On  mercantile  contracts  re- 
lating to  insurance,  said  Lord  Hardwicke  in  a  case  before  him, 
courts  of  law  examine  and  hear  witnesses,  as  to  the  usage  and  un- 
derstanding of  merchants  conversant  therein;  for  they  have  a  style 
peculiar  to  thenvselves,  which  is  short,  yet  is  understood  by  them, 
and  must  be  the  rule  of  construction.  (2)  Thus,  where  an  insur- 
ance was  on  a  ship  from  London  to  the  East  Indies,  warranted  to 
depart  with  convoy,  the  Court  held,  that  this  clause  of  warranty 
must  be  construed  according  to  the  usage  among  merchants; 
that  is,  from  such  place  where  convoys  are  to  be  had,  as  from  the 
Downs.  (3)  So,  where  the  insurance  is  on  goods  till  landed,  and  the 
defence  is,  that  the  plaintiff^  has  been  guilty  of  unreasonable  delay 
in  landing,  the  question  can  only  be  decided  by  knowing  the  usual 
practice  of  the  trade,  with  which  every  underwriter  is  supposed  to 
be  acquainted,  whether  the  practice  has  been  recently  or  long  es- 
tablished. (4) 

It    has    indeed    been    doubted  by   Judges    of   the  highest    au- 
thority, whether  the  practice  of  admitting  such   evidence  has  not 

(1)  While  V.  Wilson,  2  Bos.  &  Pull,  ter,  1  Starkie,  N.  P.  C.  210.     4  Campb. 
116.  3S5,  S.    C.     The  cases  on   this   subject 

(2)  1  Ves.  459.     2  Ves.  331.     Edie  are   stated  in   Park's  Treat,    on    Insur- 
V.    East    India    Com.     2    Burr.     1216.  ances,  p.  49 — 101,  last  edit. 
Chaurand     v.     Angerstein,    Peake,    N.  (3)   Lethulier's  case,  2  Salk.  443. 

P.    C.    43.       Cochran    v.    Rethberg,    3  (4)  Noble    v.    Kennoway,    1     Doug. 

Esp.    N.    P.    C.    121.      Uhde    v.    Wal-     510.      Vallance   v.    Dewar,    1    Campb. 
ters,  3    Campb.  16.     Birch    v.    Depeys-     503. 


(2-)  See  Note  978,  p.  1462. 


Sect.  ?.]  to  vary  or  discharge   Written  Instruments.  bbl 

been  carried  to  an  inconvenient  length.  In  the  case  of  Anderson 
V.  Pitcher,  (I)  Lord  Eldon,  C.  J.  expressed  himself  in  the  following 
terms:  "  It  is  now  too  late  to  sny,  that  this  warranty  is  not  to  be 
expounded  with  due  regard  to  the  usage  of  trade.  Perhaps  it  is 
to  be  lamented,  that,  in  policies  of  insurance,  parties  should  not  be 
left  to  express  their  own  meaning  by  the  terms  of  the  instrument. 
This  seems  to  have  been  the  opinion  of  that  great  Judge  Lord 
Holt.  (2)  It  is  true,  indeed,  that  Lord  Mansfield,  who  may  be 
considered  the  establisher,  if  not  the  author,  of  a  great  part  of  this 
law,  expressed  himself  thus:  '  Wherever  you  render  additional 
words  necessary,  and  multiply  them,  you  also  multiply  doubts 
and  criticisms. '(3)  Whether,  however,  it  be  not  true,  that 
as  much  subtlety  is  raised  by  the  application  of  usage  to  the 
construction  of  a  contract,  as  by  the  introduction  of  additional 
words,  might,  if  the  matter  were  res  integra^  be  reasonably  ques- 
tioned."(a) 

But  though  the  usage  of  merchants,  with  reference  to  which 
the  parties  are  supposed  to  contract,  may  be  frequently  re- 
sorted to  for  explaining  or  defining  the  terms  of  a  policy,  it  is 
not  therefore  to  be  supposed,  that  this  species  of  contract  is  not 
subject  to  the  same  rules  of  construction  as  are  applicable  to 
other  written  instruments.  The  same  rules  of  construction  apply 
to  every  kind  of  contract.  The  terms  of  a  policy  are  to  be  un- 
derstood in  their  plain,  ordinary,  and  proper  sense,  unless  they 
have  generally,  in  respect  to  the  subject-matter,  (as  by  the 
known  usage  of  trade,  or  the  like,)  acquired  a  peculiar  sense 
distinct  from  the  popular  sense  of  the  words:  or  unless  the  con- 
text evidently  points  out,  that  they  must,  in  the  particular  in- 
stance, and  in  order  to  effectuate  the  immediate  intention  of  the 
parties,  be  understood  in  some  other  special  and  peculiar 
sense.  (4)  Proof  of  usage  is  not  admissible  to  contradict  the 
plain  unequivocal  language  of  a  policy;  and  therefore  in  an 
action  on  a  policy  of  insurance  "  on  the  ship  till  moored  at 
anchor  twenty-four  hours,  and  on  the  goods  till  discharged  and 

(1)  2  Bos.  &  Pull.  168.  delivering  his  judgment  in  Robertson  v. 

(2)  Lethulier's  case,  2  Salk.  443.  French,  4  East,  135.     Birch  v.  Depeys- 

(3)  Lilly  V.  Ewer,  1  Doug.  74.  ter,  4  Campb.    385.     Chaurand   v.    An- 

(4)  By  Lord  EUenborough,   C-  J.    in     gerstein,  Peake,  N.  P-  C.  43. 

(a)  See  Note  979,  p.  1462. 


558  Of  the  Admissibility  of  Parol  Evidence^  [CIi.   10. 

safely  landed,"  evidence  having  been  admilted,  that  hy  the  cus- 
tom of  the  trade  the  risk  on  the  goods,  as  well  as  on  the  ship,  ex- 
pired in  twenty-four  hours,  the  Court  of  King's  Bench  ^granted  a 
new  trial  on  that  ground,  and  on  the  new  trial  the  evidence  was 
rejected.  (1)  Evidence  of  usage  of  trade,  which  contradicts  the 
express  words  of  a  contract,  is  clearly  inadmissible. (2)  [b) 

Tliis  doctrine  of  admitting  evidence  of  usage  to  explain  and 
construe  mercantile  contracts  is  strongly  illustrated  by  the  case  of 
Cutter  V.  Powell, (3)  which  was  an  action  of  assumpsit  brought 
by  an  administratrix  for  work  and  labor  done  by  the  deceased.  It 
appeared  that  the  captain  of  a  ship  had  given  a  note  to  the  deceas- 
ed, by  which  he  promised  to  pay  a  sum  of  money  to  the  deceased, 
provided  that  he  proceeded  on  a  voyage,  and  continued  to  his  duty 
as  second  mate,  the  port  of  destination.  The  second  mate  died 
on  the  voyage,  and  the  question  was,  whether  the  plaintiff  could 
recover  in  this  general  action  any  portion  of  the  wages  for  the 
time  the  deceased  had  served.  An  inquiry  had  been  made  by  the 
direction  of  the  Court  relative  to  the  usage  of  merchants  on  this 
kind  of  agreement;  but  no  settled  usage  could  be  ascertained 
one  way  or  the  other.  Lord  Kenyon,  in  delivering  his  opinion,  af- 
ter stating  that  the  deceased  stipulated  to  receive  the  larger  sum, 
if  the  whole  duty  were  performed,  and,  unless  the  whole  were 
performed,  to  receive  nothing,  added,  that  on  this  particular  con- 
tract his  opinion  was  at  present  formed;  at  the  same  time,  said 
Lord  Kenyon,  if  we  were  assured,  that  these  notes  are  in  uni- 
versal use,  and  that  the  commercial  world  have  received  and 
acted  upon  them  in  a  different  sense,  I  should  give  up  my  opin- 
ion. And  Mr.  Justice  Lawrence  said,  "  With  regard  to  the 
common  case  of  an  hired  servant,  to  which  this  has  been  com- 
pared, such  a  servant,  though  hired  in  a  general  way,  is  con- 
sidered to  be  hired  with  reference  to  the  general  understanding 
upon  the  subject,  that  the  servant  shall  be  entitled  to  his  wages 
for  the  time  he  serves,  though  he  does  not  continue  in  the 
service  during  the  whole  year.  So  if  the  plaintiff  in  this  case 
could  have  proved  any    usage,  that    persons  in  the   situation  of 

(1)  Parkinson  v.  Collier,  sitt.  after  (2)  Yeates  v.  Pirn,  2  Marshall's  R. 
Mich.  1797,  Park.  Insur.  416.  141.     Holt,  N.  P.  C.  95,  S.  C. 

(3)  6  T.  R.  320. 


(b)    See  Note  980,  p.  1463. 


Sect.  2.]  to  vary  or  discharge  Written  Instruments.  559 

this  mate  are  entitled  to  wages  in  proportion  to  the  time  they  serv- 
ed, the    plaintiff  might  have   recovered   according   to  that  usage. 
But  if  this  is  to  depend   altogether  on  the  terms  of  the   contract^ 
itself,  the  plaintiff  cannot  recover  any  thing." 

The  same  rule  applies  to  all  such  written   agreements  as  are  re-  Agreements 

,  ,         ,  ,-,,...  riM  1      within  the  sta- 

quired  by  the  statute  ol  Irauds  to  be  in  writing.  1  ney  cannot  be  tute  of  frauds, 
contradicted,  or  added  to,  or  substantially  varied,  by  parol  evi- 
dence; (1)  such  evidence  would  defeat  the  statute,  and  introduce 
that  uncertainty,  which  it  was  the  object  of  the  legislature  as  far 
as  possible  to  suppress.  Where  the  rent  for  a  house  was  specified 
in  a  written  agreement  to  be  twenty-six  pounds  a  year,  and  the 
landlord,  in  an  action  for  use  and  occupation,  proposed  to  show  by 
parol  evidence,  that  the  tenant  had  also  agreed  to  pay  the  ground- 
rent,  the  Court  refused  to  admit  the  evidence.  (2)*  So,  where  a 
tenant  having  paid  the  land-tax,  brought  an  action  to  recover  it 
back  from  his  landlord,  and  gave  in  evidence  a  written  memoran- 
dum of  agreement  in  the  plaintiff's  hand-writing,  which  specified 
the  rent  and  terms,  but  was  silent  respecting  the  payment  of  taxes; 
and  the  defendant  offered  parol  evidence,  that,  previously  to  the 
drawing  up  of  the  memorandum,  it  had  been  mentioned  and  was 
understood  by  the  parties,  that  the  rent  was  to  be  paid  clear  of  all 
taxes:  tins  evidence  was  rejected,  and  the  Court  of  Common 
Pleas  afterwards,  on  a  motion  for  a  rule  to  show  cause,  why  the 
verdict  should  not  be  set  aside,  adjudged  the  evidence  to  be  in- 
admissible, and  refused  the  rule.  (3) 

(I)  Binstead  v.  Coleman,   Bumb.  65.  Price,    143.     Bartlett   v.    Pickersgili,    1 

Parteriche  v.  Powlet,  2  Atk.  383.     Port-  Cox,  Ch.  C.  15. 

more  v.  Morris,  2  Br.    C.  C.  219.    Hare  (2)    Preston    v.    Merceau,    2   Black. 

V.  ?hearvvood,  1  Ves-    241.     Jackson    v.  1249. 

Cater,  5  Ves  628.  7    Ves.  218.     Meres  (3)   Rich  v.    Jackson,   4  Bro.    Ch.  C. 

V.  Ansell,  3  Wils   275.     Wain  v.  Warl-  515.     6  Nes.  334,  n  ,  S.  C. 
ters,    5   East,    16.     Hope   v.    Atkins,  1 


*  In  the  case  of  Preston  v.  Merceau,  above  cited,  Mr.  Justice  Blackstone 
after  stating,  that  the  Court  could  neither  alter  the  rent  nor  the  term,  the 
two  things  expressed  in  the  agreement,  is  reported  to  have  added,  "  that, 
with  re.'ipect  to  collateral  matters,  it  might  be  different;  the  plaintiff  might 
shew,  who  was  to  put  the  house  in  repair,  or  the  like,  concerning  which  no- 
thing is  said."  But  this  opinion  is  not  consistent  with  the  principle  established  in 
Meres  v  Ansel!,  (3  Wils.  275,)  Rich  v.  Jackson,  (4  Bro.  Ch.  C.  515,)  Powell  v. 
Edmonds,  (12  East,  6,)  and  several  other  cases  above  mentioned,  which  plainly 
show,  that  parol  evidence  is  not  admissible  either  to  vary,  or  to  add  to,  the  terms  of 
the  written  agreement.  To  add  a  new  term,  or  to  define  what  was  before  indefinite, 
is  in  effect  to  make  a  material  variation. 


560  Of  the  Admissibility  of  Parol  Evidence^     [Ch.  10. 

Upon  the  same  principle,  the  verbal  declarations  of  an  auc- 
tioneer at  the  time  of  sale  are  not  admissible  in  evidence  for  the 
^purpose  of  varying,  or  adding  to,  or  explaining  the  printed  condi- 
tions of  sale. (I)  (c)  Thus,  where  the  conditions  described  only 
the  number  and  kind  of  timber  trees  to  be  sold  by  lot,  but  said 
nothing  as  to  the  weight  of  the  timber,  the  defendant  in  an  action 
for  not  completing  his  purchase  according  to  the  conditions,  was 
not  allowed  to  prove,  that  the  auctioneer  at  the  sale  had  warranted 
the  quantity  of  limber  to  amount  to  a  certain  weight,  and  the 
Court  of  King's  Bench  was  of  opinion,  that  this  evidence  had  been 
properly  rejected. (2)  Lord  Ellenborough  said,  "  the  purchaser 
ought  to  have  had  it  reduced  into  writing  at  the  time,  if  the  rep- 
resentation then  made,  as  to  the  quantity,  swayed  him  to  bid  for 
the  lot.  If  the  parol  evidence  were  admissible  in  this  case,  in 
what  instance  might  not  a  party  by  parol  testimony  superadd  any 
term  to  a  written  agreement.'' — which  would  be  setting  aside  all 
written  contracts,  and  rendering  them  of  no  effect.  There  is  no 
doubt  that  the  warranty  as  to  the  quantity  of  timber  would  vary 
the  agreement  contained  in  the  written  conditions  of  sale." 

"When  a  contract  is  made  for  the  sale  of  goods,  and  the  bar- 
gain has  been  reduced  into  writing,  pursuant  to  the  seventeenth 
section  of  the  statute  of  frauds,  parol  evidence  would  not  be  ad- 
mitted to  show,  that  the  parlies  agreed  to  vary  the  quantity  of 
goods  to  be  delivered.  But  the  rule  is  different  with  respect  to 
the  time  of  delivery,  or  the  particular  mode  of  delivery,  which 
are  not  essential  parts  of  the  contract,  but  are  frequently  ex- 
pressed in  the  memorandum,  together  with  the  quantity  and 
the  price  of  the  goods,  in  order  the  more  easily  to  carry  the 
contract  into  execution  ;  proof  of  a  verbal  agreement  has 
therefore,  been  allowed  to  prolong  the  time,  limited  in  a  written 
contract,  for  the  delivery  of  a  certain  quantity  of  barley;  (3) 
on  the  ground,  that  it  was  only  a  continuance  of  the  original 
contract,   and   a  forbearance  on    the     part  of  the   plaintiff  for  a 

(1)  Gunnis  V.   Erhart,  1    H.  BI.  289.  Beam.    328-      Ogilvie    v.     Foljambe,   8 

Jenkinson    v.    Pepys,    cited  6  Ves.    330.  Merivale.  53. 

Higginson    v.    Clowes,    15     Ves.     516  (2)   Powell  v.  Edmonds,  12  East,  6. 

Clowes  V.  Higginson,    1  Ves.   &    Beam.  (3)  Wnrren  v.  Stagg,  ruled  by  Buller, 

624.     Winch  v.    Winchester,  1    Ves.  &  J.,  cited  in  3  T.  R.  591. 


(c)  See  Note,  981,  p.  1463. 


Sect.  2.]    to  vary  or  discharge  Written  Instruments.  561 

longer  time.  And  in  a  very  late  case,  where  the  question  was, 
whether,  after  a  part-delivery  of  goods,  which,  by  a  written  contract, 
were  to  be  delivered  at  fixed  times,  a  verbal  agieement,  to  extend 
the  time  for  the  delivery  of  the  remainder,  was  good,  the  Court  of 
King's  Bench  held,  that  it  was  good;  (1)  for  this  was  not  a  parol 
variation  of  the  contract,  but  what  had  been  done  was  only  in  per- 
formance of  the  original  contract:  the  parties  agreed  to  a  substitu- 
tion of  other  days,  instead  of  those  originally  specified  for  its  per- 
formance, but  still  the  contract  remained,  {d)  Parol  evidence  is  al- 
so admissible  to  show  that  a  written  contract,  purporting  to  be  made 
between  A.  and  B.,  as  seller  and  buyer,  was  in  fact  made  by  B. 
not  on  his  own  account,  but  as  agent  for  a  third  person.  (2)  (e) 

By  the  rule   of   law,   independently   of  the   statute  of   frauds,  Contracts 
\        .  .  ,  .       ,  ,.  .  within  statute 

parol  evidence  cannot  be  received  to  contradict  a  written  agree-  of  frauds, 
ment;  the  written  instrument  must  be  considered  as  containing 
the  true  agreement  between  the  parties,  and  as  furnishing  better 
evidence  than  any  which  can  be  supplied  by  parol.  (3)  The 
reason  assigned  by  Lord  Coke  against  admitting  parol  evidence 
to  contradict  the  terms  of  a  deed,  is  very  general,  and  applies  to 
the  case  of  a  written  agreement,  though  writing  may  not  have 
been  absolutely  necessary.  "  It  would  be  inconvenient,"  he 
says,  "  that  matters  in  writing,  made  on  consideration,  and  which 
finally  import  the  certain  truth  of  the  agreement  of  the  parties, 
should  be  controlled  by  an  averment  of  the  parties,  to  be  proved 
by  the  uncertain  testimony  of  slippery  memory."  (4)  Thus, 
where  there  has  been  a  contract  in  writing  for  the  sale  of  goods, 
specifying  the  quantity  and  the  price,  neither  of  the  contracting 
parties  would  be  allowed  to  give  evidence  of  conversations  pre- 
vious to,  or  contemporaneous  with  the  bargain,  for  the  purpose  of 
proving  that  the  price  was  to  be  different,  or  that  a  different 
quantity  was  to  be  delivered;  for  this  evidence  would  directly 
contradict  the  written  memorandum,  which  must  be  considered 
as  expressing  the  final  intention  and  understanding  of  the  parties 
at  the  time  of  the  contract.     For  the  same   reason,  if  the  time  of 

(1)  Cuff  V.  Penn,  1    Maule    &  Selw.         (3)  2  Atk.  383      Sayer,  189.    2  Bro. 
21.  Ch.  C.    219.     7   Ves.    21S.     4   Taunt. 

(2)  Wilson  V.  Hart,  7    Taunt.  295.  1  786.     2  Barn.  &  Cress.  634. 
Moore,  C.  P.  45,  S.  C.  (4)  5  Rep.  26. 


(d)  See  Note  982,  p.  1463.     (e)  See  Note  983,  p.  1464. 

Vol.   T.  71 


662  Of  the  Admissibility  of  Parol  Evidence,  [Ch.    10. 

carrying  away  the  goods  is  not  expressed  in  the  agreement,  in 
which  case  a  reasonable  time  is  allowed,  evidence  will  not  be  ad- 
mitted to  show,  that  the  purchaser  verbally  agreed  to  carry  them 
away  immediately  after  the  purchase.  (I)  (/) 

But  if  it  were  not  necessary  in  the  first  instance  to  have  the  bar- 
gain reduced  into  writing,  evidence  of  conversations  subsequent  to 
the  time  of  making  the  agreement  would  probably  be  admitted,  to 
show  that  the  parties  agreed  afterwards  to  vary  the  contract,  or  add 
some  new  stipulation.  Here  the  written  agreement,  so  far  it  pur- 
ports to  express  the  true  meaning  of  the  parties,  that  is,  down  to 
the  time  of  its  being  concluded,  is  not  in  any  manner  contradicted 
or  impugned;  but  from  the  proposed  evidence  it  would  appear, 
that  they  afterwards  varied,  or  added  to,  the  contract;  which  is  not 
inconsistent  with  any  thing  contained  in  the  original  agreement,  (g) 
Lord  Hardwicke  is  reported  to  have  said  in  a  case  before  him,  (2) 
that  "  to  add  any  thing  to  an  agreement  in  writing,  by.  admitting 
parol  evidence,  which  would  affect  land,  is  not  only  contrary  to  the 
statute  of  frauds,  but  to  the  rule  of  common  law,  before  that  stat- 
ute was  in  being."  It  is  not,  however,  expressly  stated  in  the  re- 
port of  the  case  before  Lord  Hardwicke,  whether  the  circumstance, 
to  which  the  parol  evidence  related,  was  previous  or  subsequent  to 
the  signing  of  the  agreement;  but  it  seems  rather  probable,  from 
the  nature  of  the  case,  that  it  was  previous. 

eral°fa°ts^°o^ '  Though  an  ambiguity,  apparent  on  the  face  of  a  written  in- 
show  intention,  strument,  cannot  be  explained  by  extrinsic  evidence,  yet  where 
a  question  arises  as  to  the  general  intention  of  the  parties, 
concerning  which  the  instrument  is  not  decisive,  it  has  been 
held,  that  proof  of  independent  facts,  collateral  to  the  instru- 
ment, may  be  properly  admitted,  (/i)   Thus,  in  the  case  of  King  v. 

(1)     Greaves    v.    Aslilin,    3    Campb.  accidents      It  does  not    ;ippear   from  the 

426.     Williams    v.  Jones,    5    Barn.    &  report  whether  the  writleii  rT:eii:oranduni 

Cress.    108.     See    Jefferey    v.   Walton,  was  signed  by  tlie    defendant;  if  it    was 

1  Starkie,    N.  P.  C.  267,    wherfe,     in  an  not  .signed,    it  cannot    be    considered    us 

action  for    not  taking   proper  care    of  u  evidence  of  the  agreement.     See  Ingram 

horse,  which    the  defendant    had    hired,  v.  Lea,  2  Campb.  521. 
the   time    of  hiring  and   the    price    were  (2)    i'arleriche  v.  Powlet,  2  Atk.  384. 

proved  by  a    written  memorandutn,    and  See  Clinan  v.  Cooke,    1  Schoal.    &  Lef. 

it  was  proved    by    parol    evidence,    that  35. 
the  defendant  aareed  to    be  liable  for  all 


(/  )  See  Note  984,  p.  1466.     {g)  See  Note  985,  p.  1477.     {h)  See  Note  986, 
p.  1478. 


Sect.  2.]    to  vary  or  discharge,  IVritien  Instruments.  563 

Laindon,(l)  on  a  question  between  ivvo  parishes  respecting  the  set- 
tlement of  a  pauper,  where  it  appeared  that  the  pauper  agreed  to 
serve  a  person  three  years,  to  learn  the  business  of  a  carpenter,  and 
evidence  was  admitted  at  the  sessions,  that,  at  the  time  of  making 
this  agreement,  the  pauper  agreed  also  to  give  a  sum  of  money,  as 
a  premium  to  be  taught  the  trade;  that  he  paid  the  money,  and 
that  he  was  not  to  be  employed,  nor  w  as  he  employed,  in  any  other 
work  than  that  of  a  carpenter;  the  Court  of  King's  Bench  held, 
that  the  evidence  was  properly  admitted,  as  it  was  not  offered  to 
contradict  the  written  agreement,  but  to  ascertain  an  independent 
fact  collateral  to  the  written  instrument,  in  order  to  explain  the  in- 
tention of  the  parties,  the  instrument  being  in  some  measure  equiv- 
ocal. It  does  not  distinctly  appear  from  the  report,  whether  the 
fact  alluded  to  was  the  verbal  agreement,  (by  which  the  pauper 
agreed  to  pay  a  premium,  and  stipulated  that  he  was  to  do  only 
carpenter's  work,)  or  only  the  payment  of  a  certain  sum  of  money 
by  the  pauper  to  the  master  at  the  time,  when  the  agreement  was 
made.  But  from  the  opinions  expressed  by  the  court,  in  which 
the  evidence  of  the  verbal  agreement  was  not  adverted  to,  it  may 
be  inferred,  that  the  latter  fact  alone  was  adjudged  to  be  admissible. 
Lord  Kenyon  said,  "  The  evidence  was  offered  to  ascertain  an  in- 
dependent fact,  and  I  think  it  was  properly  received  in  evidence. 
That  being  so,  the  case  appears  to  be  shortly  this:  in  consideration 
of  three  guineas  paid  by  the  pauper,  the  master  undertook  to  leach 
him  the  business  of  a  carpenter,  and  the  pauper  was  to  serve  three 
years."  Mr.  Justice  Lawrence  expressed  himself  nearly  in  the 
same  words;  and  Mr.  Justice  Le  Blanc  concurred  in  opinion  with 
the  Court,  that  the  parol  evidence  was  admissible,  as  evidence  of  a 
fact  collateral  to  the  written  instrument.  (2) 

A  deed  cannot  be  discharged  or  revoked   by  parol;  for  every  Parol  agree- 

T        ,     „    ,  ,  1         !•        1      J  ment  discharg- 

contract  or  agreement,   says   Liord   Coke,  ought  to  be  dissolved  ej  ^y  parol. 

by  matter  of  as  high  a  nature  as  the  first  deed;  nihil  tain  con- 
veniens est  naturali  cequitati  quam  unumquodque  dissolvi  eo  Uga- 
mine,  quo  ligatumest.  (3)(i)     This  reason  is  applied  by  Lord  Coke 

(1)  ST.  R.  379.     And  see  14  Ves.         (3)  5  Rep.  26,  a.     9  Rep.    79,  b.     3 
170.  Lev.  234.     Blake's  case,  6   Rep.  44,  a. 

(2)  See  also  14  East,  544.  Braddick  v.  Thompson,  8  East,  344. 


(t)  Sea  Note  987,  p.  1479. 


564  Of  the  Admissibility  of  Parol  Evidence,   [Cli.  10. 

only  to  agreements  by  specialty.  But  it  appears  to  be  generally 
understood,  that  executory  agreements  in  writing,  not  under  seal, 
may  before  breach  be  discharged  and  abandoned  by  a  subsequent 
unwritten 'agreement,  as  well  in  cases  where  the  original  contract 
is  required  by  the  statute  of  frauds  to  be  in  writing,  as  where  writ- 
ing is  unnecessary.  Agreements,  not  by  specialty,  whether  writ- 
ten or  unwritten,  are  classed  on  the  same  level,  and  denominated 
agreements  by  parol;  there  is  no  such  third  class  recognized  by  the 
law  of  England  as  contracts  in  writing  not  under  seal;  if  they  are 
merely  written,  and  not  specialties,  they  are  called  parol  (or,  more 
properly,  simple)  contracts.(l)  It  follows,  therefore,  that  to  admit 
evidence  of  an  unwritten  agreement,  for  the  purpose  of  showing 
an  abandonment  or  discharge  of  a  previous  written  agreement, 
would  not  be  to  dissolve  the  agreement  by  matter  of  an  inferior 
nature.  Nor  does  the  statute  of  frauds  contain  any  provision  re- 
specting the  dissolution  of  agreements;  it  prescribes  the  manner 
of  revoking  wills,  and  in  many  cases  makes  a  written  memoran- 
dum necessary  in  order  to  establish  and  enforce  agreements;  but, 
as  to  the  discharge  or  abandonment  of  executory  agreements,  the 
statute  is  entirely  silent,  leaving  the  case  as  it  stood  at  common 
law.  The  17th  section  enacts,  in  certain  cases,  that  "  a  contract 
for  the  sale  of  goods  shall  not  be  allowed  to  be  good,  unless  some 
note  or  memorandum,  in  writing,  of  the  bargain  shall  be  made 
and  signed,"  &c.;  but  an  agreement  to  waive  that  contract,  before 
breach,  is  not  a  contract  for  the  sale  of  goods,  and  may  therefore 
be  binding,  though  not  reduced  into  writing.  So,  the  fourth 
section  enacts,  that  "  no  action  shall  be  brought  upon  any  con- 
tract or  sale  of  lands,  &c.,  or  any  interest  in  or  concerning  them, 
unless  the  agreement,  upon  which  the  action  shall  be  brought, 
or  some  memorandum  or  note  thereof,  shall  be  in  writing,"  &c. 
This  is  very  different  from  enacting,  that  all  contracts  or  agree- 
ments concerning  land  shall  be  in  writing;  terms  so  general  and 
comprehensive,  that,  if  they  had  been  introduced  into  the  act, 
they  might  be  considered  as  including  an  agreement  for  the 
waver  of  a  purchase-contract,  as  well  as  the  original  agreement 
itself:  the  section  only  provides,  "  that  no  action  shall  be  brought 
upo7i  any  contract  or  sale  of  lands,''^  &c.;  but  it  does  not  proceed 

(1)  Rann  v.  Hughes,  7  T.  R.  350,  n. 


Sect.  2.]    to  vary  or  discharge  Written  Instruments.  565 

to  enact,  in  case  an  action  is  brought,  and  the  defence  set  up  is  a 
dissolution  and  abandonment  of  the  agreement,  that  some  r.ote  or 
written  memorandum  is  also  necessary  to  give  effect  and  validity 
to  such  subsequent  agreement.  (J) 

On  a  bill  filed  in  a  court  of  equity  for  the  specific  perfornnance 
of  a  written  agreement,  it  appears  to  be  the  better  opinion,  that 
the  defendant  may  insist,  that  the  agreement  has  been  since  dis- 
charged merely  by  parol  between  the  parties.  {l){k)  In  the  case 
of  Buckhouse  and  Crosby,  (2)  indeed,  where  a  bill  was  filed  for 
the  specific  performance  of  a  contract  for  the  sale  of  an  estate, 
and  the  defendant  insisted  that  the  contract  had  been  discharged 
by  parol,  in  support  of  which  the  case  of  Goman  v.  Salisbury 
was  cited  as  an  authority.  Lord  Hardwicke  is  reported  to  have 
declared,  that  "  though  he  would  not  say,  that  a  contract  in 
writing  could  not  be  waved  by  parol,  yet  he  should  expect  in 
such  a  case  a  very  clear  proof,  and  the  proof  in  the  case  before 
him  he  thought  very  insufficient  to  discharge  a  contract  in  writ- 
ing;" Lord  Hardwicke  then  observed,  that  the  statute  of  frauds 
requires,  "  that  all  contracts  and  agreements  concerning  land 
should  be  in  writing,  (3)  and  that  an  agreement  to  wave  a  pur- 
chase contract  is  as  much  an  agreement  concerning  land  as  the 
original  contract;  however,  there  was  not  any  occasion  then  to 
determine  the  point."*  (Z)     And  in  the  case  of  Bell  v.  Hovv- 

(1)  Goman    v.    Salisbury,    1     Vern.  39.     2     Ves.  299,   S.  P.     1    Ves.  jun. 

840,     cited    and     approved     by    Sir    J.  404,  S.  P.     17  Ves.  356. 
Strange,    in   Legal    v.      Miller,  2    Ves.         (2)  Eq.  Cas- Ab.  32. 
299,   and   in   Pitcairne    v.  Ogbourne,  2         (3)  This  is   not  quite  correct.     Vide 

Ves.  376,  and     cited   by   Lord     Chan-  supra,  p.  564. 
cellor   Redesdale   in  1    Schoal.  &    Lef. 

*  In  this  case  of  Buckhouse  and  Crosby,  the  waver  was  not  between  the 
purchaser  and  vendor,  but  between  a  former  and  a  subsequent  purchaser. 
The  material  facts  of  the  case  will  be  found  to  be,  that  A.,  seized  of  lands  in 
fee-simple,  mortgaged  them  to  the  defendant,  and  afterwards  authorized  his 
attorney  to  sell  the  estate,  who  sold  it  by  parol  agreement  to  the  plaintitf;  A. 
being  informed  of  this,  wrote  to  the  plaintiff,  acquainting  him  that  he  accepted 
the  purchase-money:  afterwards  A.  by  letter  offered  the  estate  for  the  same 
money  to  a  third  person,  who  agreed  with  A.  for  the  purchase  on  behalf  of 
the  defendant,  and  accordingly  A.  by  indenture  conveyed  the  premises  to  the 
defendant  in  consideration  of  300  guineas  then  paid.  Before  this  coriveyance, 
C,  who  treated  for  the  purchase  on  behalf  of  the  defendants,  had  notice  of 
the  plaintiff's  title,  but,  being  examined  as  witness  for  the  defendant,  swore 
that,  before  the  conveyance  was  executed  to  him,  the  plaintiff  agreed,  that 
all  prior  contracts  between  him  and  A.  should  be  void,  and  that  it  should  be 
referred  to  A  ,  whether  the  plaintiff  or  the  defendant  should  be  the  purchas- 
er, and  that  A.,  being  written  to,  gave  the  preference  to  the  defendant. 


0)  See  Note  988,  p.  1481.     (/c)  See  Note  989,  p.  14S2.     (/)  See  Note  990,  p. 
1482. 


56^3  Of  the  Admissibility  of  Parol  Evidence,     [Ch.  10. 

ard,  (1)  Lord  Hardwicke,  after  noticing  an  objection  on  the  part  of 
the  defendant,  against  decreeing  an  execution  of  written  articles 
for  the  sale  of  an  advowson,  (namely,  that  the  plaintiff  had  waved 
the  articles,)  is  reported  to  have  said,  "  It  is  certain,  an  interest  in 
land  cannot  be  parted  with,  or  waved,  by  naked  parol  without 
writing;  but  added,  "  that  articles  may  by  parol  be  so  far  waved, 
that,  if  a  party  come  into  a  court  of  equity  to  have  specific  execu- 
tion of  them,  such  parol  waver  will  rebut  the  equity  which  the 
party  before  had,  and  prevent  the  Court  from  executing  them  spe- 
cifically." But  in  the  last  case  on  this  subject,  (2)  where  the  plain- 
tiff prayed  a  specific  performance  of  an  agreement  for  a  lease,  un- 
der which  the  plaintiff  had  taken  possession,  as  afterwards,  as  the 
defendant  stated  in  his  answer,  the  parties  mutually  abandoned 
the  terms  of  the  written  agreement,  and  made  another  agreement 
by  parol,  the  Master  of  the  Rolls,  observing  upon  the  argument 
for  the  defendant,  ""  that  the  agreement  was  waved,  and  that  a 
written  agreement  may  be  so  far  waved  by  parol,  that  the  Court 
will  refuse  the  interposition  of  its  equitable  jurisdiction  to  enforce 
it,"  said,  that  as  he  conceived  there  was  not  in  the  case  before 
him  any  waver  within  the  meaning -of  the  dicta  or  the  decisions 
upon  the  subject,  it  was  not  necessary  for  him  to  give  any  precise 
opinion  upon  the  point;  "  but,"  he  added,  "  as  at  present  advised, 
I  incline  to  think,  upon  the  doctrine  of  this  Court,  such  would  be 
the  effect  of  a  parol  waver  clearly  and  satisfactorily  proved.  The 
waver,  spoken  of  in  the  cases,  is  an  entire  abandonment  and  disso- 
lution of  the  contract,  restoring  the  parties  to  their  former  situa- 
tion. No  such  thing  was  for  a  moment  in  the  contemplation  of 
the  parties.  All  that  they  at  any  time  meant,  was  to  add  to,  or 
modify,  the  terms  of  the  original  agreement."  The  bill  was  ac- 
cordingly dismissed,  but  without  costs. 

Sect.  III. 

Of  the.  Rule  in  Courts  of  Equity,  respecting  the  Admissibility   oj 
Parol   Evidence. 

It  would    far    exceed   the  proper  limits  of  this    treatise,  to  en- 
quire into  the  rules  observed   by    courts  of  equity,    respecting  the 

(1)  9   Mod.  302.  (2)   Price  v.  Dyer,  17  Ves.  356,363. 

See  also  9  Ves   250. 


Sect.  3.]  in  Courts  of  Equity.  567 

admissibility  of  parol  evidence,  on  subjects  within  their  peculiar 
jurisdiction.  Such  an  enquiry  would  be  long  and  laborious;  and 
the  multitude  of  cases,  which  it  would  be  necessary  to  cite,  would, 
after  all,  be  seldom  wanted  in  the  business  of  courts  of  common 
law.  The  purpose  of  entering  at  all  upon  this  subject,  is  with  a 
view  to  mention  some  points  very  nearly  connected  with  those  io 
the  last  section,  (m) 

The  rules  of  evidence,  in  courts  of  equity,  are,  in  general,  the  general  rule, 
same  as  in  courts  of  common  law;  although,  in  the  application 
of  those  rules,  diversities  must  necessarily  arise  from  the  different 
modes  of  proceeding  in  the  two  jurisdictions. (1)  It  is  a  general 
principle,  therefore,  established  in  the  former  courts,  no  less  than 
in  the  latter,  that  parol  evidence  of  the  intention  of  the  parties  is 
not  admissible  to  vary  or  add  to  iJie  term  of  a  written  agree- 
ment. (2)  (n)  If  the  agreement  is  certain,  explained  in  writing, 
and  signed  by  the  parties,  lliat  binds  them:  if  it  is  not  certain,  and 
parol  evidence  is  necessary  to  prove  what  the  terms  were,  to  ad- 
mit such  evidence  would  effectually  break  in  upon  the  statute  of 
frauds,  and  introduce  all  the  mischiefs,  inconvenience,  and  uncer- 
tainty, which  the  statute  was  designed  to  prevent.  (3)  In  the 
case  of  Rich  v.  Jackson,  (4)  therefore,  on  a  bill  for  specific  per- 
formance, the  Court  of  Chancery  gave  the  same  judgment, 
against  the  admissibility  of  parol  evidence,  to  vary  a  written  con- 
tract, as  had  been  previously  given  by  the  Court  of  Common 
Pleas  in  an  action  between  the  same  parties.  "  The  question," 
said  Lord  Kosslyn  in  that  case,  "  is,  whether,  in  equity  any 
more  than  at  law,  such  evidence  ought  to  be  admitted;  whether 
there  is  any  distinction  in  a  court  of  equity,  where  a  party  comes 
to  enfoice  a  written  agreement,  by  obtaining  a  more  formal  in- 
strument, and  to  add,  in  doing  that,  a  term  not  expressed  in  the 
written  agreement,  and  of  such  a  nature  as  to  bear  against  the 
written  agreement.''  I  have  looked  into  all  the  cases,  and  can- 
not find,  that  this  Court  has   ever   taken  upon   itself,   in  executing 

(1)  2  Merivale,  464.  Calor,  5  Ves.  688. 

(2)  Fell  V.  Chamberlain,    2    Dickins,         (3)   Buller,  J.,   Brodie    v.  St.    Paul,  1 
424.     Hare  v.    Shearwood,    1    Ves.  jun.     Ves.  jun.  333. 

241.     Jordan  v.  Hawkins,  3  Bro.  Ch.   C.  (4)  6  Ves.  334,  n. 

388.     1  Ves.  jun.  402,  S   C.   Jackson  v. 


(m)  See  Note  991,  p.  1482.     (n)  See  Note  992,  p.  1483. 


568  Of  the  Admissibility  of  Parol  Evidence,     [Ch.  10. 

a  written  agreement  by  a  specific  performance,  to  add  to  it,  by  any 
circumstance  that  parol  evidence  could  introduce." 

There  are  certain  elcceptions  to  this  general  rule,  the  principle 
of  which  wilt  be  briefly  considered  in  the  present  section.  First, 
it  will  be  enquired,  in  what  cases  a  defendant  may  prove  by  parol 
evidence  a  variation  in  a  written  agreement,  contrary  to  the  inten- 
tion of  the  party;  secondly  whether  a  plaintiff  mny  produce  such 
evidence.  Some  cases  will  then  be  mentioned,  in  which  extrinsic 
evidence  has  been  admitted,  to  rectify  mistakes  in  deeds,  and  for 
the  purpose  of  raising  trusts  in  wills.  ^ 

Rule  with  re-  1-  When  a  court  of  equity  is  called  upon  to  exercise  its  peculiar 
^arf  ^ch^r%d  jurisdiction  by  decreeing  a  specific  performance,  the  party  charged 
is  admitted  to  show,  that  under  the  circumstance  the  plaintiff  is 
not  entitled  to  have  the  agreement  specifically  performed. (1)  The 
admission  of  such  evidence,  as  a  matter  of  defence,  is  very  frequent; 
it  is  used  to  rebut  an  equity.  The  defendant  says,  "  The  agree- 
ment, which  you  seek,  is  not  the  agreement  which  I  meant  to  en- 
ter into;"  and  then  he  is  let  in  to  prove  fraud  or  mistake:(2)  (o) 
for  the  Court  will  not  grant  a  decree  for  specific  performance,  un- 
less it  is  satisfied,  that,  under  all  the  circumstances,  it  is  equitable 
to  give  more  relief  than  the  plaintiff  is  entitled  to  at  ]a\\.(p) 

The  statute  of  frauds  has  not  altered  the  situation  of  a  de- 
fendant, against  whom  a  specific  performance  is  prayed;  and  he 
may  give  the  same  evidence  now,  which  he  might  have  given 
before. (3)  The  words  of  the  statute  are,  that  "no  person  shall 
be  charged  upon  any  contract,  or  sale  of  lands,  &c.  unless  the 
agreement,  or  some  memorandum  or  note  thereof,  shall  be  in 
writing,  and  signed  by  the  party  to  be  charged  therewith,  or 
some  other  person  thereunto  by  him  lawfully  authorized.'  No 
person,  then,  can  be  charged  with  the  execution  of  an  agree- 
ment, who  has  not,  either  by  himself  or  his  agent,  signed  a 
written  agreement:  but  the  statute  does  not  say,  that  if  a  writ- 
ten   agreement  is  signed,  the    same  exception  to  it  may  not  be 

(1)  7  Ves.  219.  39. 

(2)  LordRedesdale,  1  Schoal.  &Lef.         (3)   14  Ves.  524. 

(o)  See  Note  993,  p.  14S3.     (p)  See  Note  994,  p.  1484. 


Sect.  3.]  iVi  Courts  of  Equity.  569 

taken  as  before  the  statute.  Now,  before  the  statute,  if  a  bill  had 
been  brought  for  specific  performance,  and  it  had  appeared  that  the 
agreement  had  been  prepared  contrary  to  the  intent  of  the  defend- 
ant, he  might  have  said,  "  That  is  not  the  agreement  meant  to 
have  been  signed."  Sucii  a  case  is  left  by  the  statute  as  it  was  be- 
fore; the  statute  does  not  say  that  a  written  agreement  shall  bind, 
but  that  an  unwritten  agreement  shall  not  bind,  (1)  {q) 

The  general  principle,  to  be  deduced  from  the  various  authorities 
on  this  subject,  appears  to  be,  that  a  defendant,  in  answer  to  a  bill 
for  a  specific  performance,  may  suggest,  and  prove  by  parol  evi- 
dence, that,  by  reason  of  fraud,  surprise,  or  mistake,  the  written  in- 
strument does  not  correctly  and  truly  express  the  agreement,  but  that 
there  is  an  omission  or  insertion  of  aterm,  orsome  material  variation, 
contrary  to  the  intention  and  understanding  of  the  parties.  (2)  (r) 

The  defendant  may  be  admitted  also  to  prove  by  parol  evi- 
dence, that,  after  signing  the  written  agreement,  the  parties  made 
a  verbal  agreement  varying  the  former;  provided  those  variations 
have  been  so  acted  upon,  that  the  original  agreement  can  no 
longer  be  enforced  without  a  fraud  upon  the  defendant.  Thus, 
in  a  case  where  there  was  a  written  agreement  for  the  lease  of  a 
house  at  the  annual  rent  of  321.,  and  that  the  owner  of  the  house 
should  put  it  in  repair;  it  was  afterwards  discovered,  that  the 
house  was  not  worth  repairing,  and,  without  any  alteration  of  the 
agreement,  the  house  was  in  consequence  pulled  down  with  the 
consent  of  the  tenant,  who  was  apprised  of  the  great  expense, 
which  the  landlord  must  necessarily  have  incurred  in  making 
the  repairs;  the  tenant  then  made  a  verbal  agreement  to  add  8/. 
per  annum  to  the  32/.,  provided  the  house  should  be  rebuilt; 
and,  on  a  bill  brought  by  the  tenant  for  a  specific  performance 
of  the  lease,  on  the  foot  of  the  written  agreement  to  pay  321. 
rent,  the  defendant  in  his  answer  set  up  the  parol  agreement.  (3) 

(1)  Lord  Redesdale's  judgment  in  tlie  211.  Clarke  v.  Grant,  14  Ves.  524. 
case  of  Clinan  v.  Cooke,  1  Schoal.  &  Ramsbottom  v.  Gosden,  1  Ves.  & 
Lef.  39.  Beam.    165.     Winch  v.    Wiuchesler,    1 

(2)  Joynes  r.  Statham,    3  Atk.    388.  Ves    Si  Beam.  37.5. 

Marquis  of  Townseiid   v.    Stangroom,  6         (3)   Legal  v.  Miller,  2  Ves.  299,  cited 
Ves.  328.     Woolam    v.  Hearne,    7  Ves.     6  Ves.  3«j(j,  n  ;  and  17  Ves.  3G4. 

iq)  See  Note  995,  p.  1484.     (r)  See  Noto  996,  p.  1484. 

Vol.   I.  72 


670  Of  the  Admissibiliiy  of  Parol  Evidence,   [Cli.  10. 

Now  here  the  original  agreement  was  unexceptionable,  but  the  ex- 
ecution of  it  under  the  new  circumstances  would  have  been  a  fraud 
upon  the  landlord;  the  landlord  having  rebuilt  instead  of  repairing 
the  house,  and  the  tenant  having  agreed  to  pay  an  additional  rent 
in  consideration  of  the  additional  expense.  The  situation  of  the 
parties  was  therefore  materially  altered.  But  variations,  verbally 
agreed  upon,  are  not  sufficient  to  prevent  ihc  execution  of  a  writ- 
ten agreement,  where  the  situation  of  the  parties  in  all  other  re- 
spects remains  unaltered.  (1) 

Rule  with  re-  2.  Whether  a  plaintiff  in  equity,  on  a  bill  for  the  specific  perform- 
plTinUff  in  ance  of  a  written  agreement,  can  in  any  case  be  admitted  to  prove, 
equity.  ^j^^t  some  terms  of  the  agreement  have  been  oTnitted  or   varied  by 

fraud,  mistake^  or  surprise,  and  that  the  agreement  is  different  from 
what  the  parties  intended;  and  whether,  on  such  a  case  being  dis- 
tinctly proved,  the  plaintiff  can  obtain  a  decree  for  a  specific  perform- 
ance of  the  agreement  in  its  rectified  fortn,  is  a  much  larger  and 
more  difficult  question,  and  one  on  wliich  it  is  not  easy  to  reconcile 
all  the  authorities.  In  the  cases  of  Lord  Irnham  v.  Child,  (2)  and 
Lord  Portmore  v.  Moiris,  (3)  where  the  plaintiff  filed  a  bill  to  redeem 
an  annuity,  and  question  was,  whether  parol  evidence  could  be  ad- 
mitted to  show,  that  the  parties  intended  tlie  annuity  to  be  redeem- 
able, but  did  not  insert  in  the  deed  a  clause  to  that  effect,  supposing 
that  it  would  make  the  transaction  usurious  ;*  Lord  Thurlow  in 
the  one  case,  and  Lord  Kenyon  in  the  other,  thought  it  clear,  that 
if  the  clause  had  been  omitted  by  fraud,  or  if  the  agreement  had 
been  varied  by  fraud,  the  evidence  would  be  admissible.  Lord 
Thurlow,   in    the   former    case,    after    saying,   that  the    rule   of 

(1)   17  Ves.  364;  and  see  Omerod  v.         (2)   1  Bro,  Ch  C.  91. 
Hardmau,  5  Ves.  722.  (3)  2  Bro.  Ch.  C.  219. 

*  Lord  Eldon  lias  observed  on  these  cases,  (a)  tliat  they  proceed  on  an  in- 
disputably clear  principle,  that  the  parties  did  not  mean  to  insert  in  the 
ETeennent  a  provision  for  redemption,  because  they  agreed  that  it  v\'ould  be 
usurious;  and  they  desired  the  Court  to  do,  not  what  they  intended,  for  the 
insertion  of  that  provision  was  direcliy  contrary  to  that  intention;  but  they 
desired  to  be  put  in  the  same  situation  as  if  they  had  been  belter  informed, 
and  consequently  had  a  contrary  intention  The  answer  is,  they  admit  it 
was  not  to  be  in  the  deed;  and  why  was  the  Court  to  insert  it,  where  two 
risks  had  occurred  to  the  parties,  the  danger  of  usury,  and  the  danger  of  trusting  to 
the  honor  of  the  party? 

(a)   6  Ves.  3S2. 


Sect.  3.]  in  Courts  of  Equity.  571 

evidence  is  not  subverted,  if  there  is  clear  proof  of  fraud,  added, 
"  Then  as  to  mistake  or  accident,  suppose  it  were  a  clear  thing,  that 
one  agreement  was  intended,  and  that  by  accident  it  was  extended 
further;  but  there  is  no  such  case  in  ihe  book:  if  admitted  to  be  a 
mistake,  the  Court  would  not  overturn  the  rule  of  equity  by  vary- 
ing the  deed,  but  it  would  be  an  equity  dehors  the  deed.  Then  it 
should  be  proved  as  much  to  the  satisfaction  of  the  Court,  as  if  it 
were  admitted."  In  another  part  of  his  judgment,  Lord  Thurlovv 
says,  "  it  is  necessary  to  see  the  statement  of  the  bill;  if  it  states, 
that  it  was  agreed,  that  the  clause  for  redenipiion  should  not  be  in- 
serted, they  cannot  read  the  evidence;  but  if  it  is  stated,  that  it  was 
intended  to  insert  the  clause,  but  that  it  was  suppressed  hy  fraud , 
I  cannot  refuse  to  hear  evidence  read  to  establish  the'rule  of  equity. 
They  are  at  liberty  to  read  evidence  to  prove  such  fraud  as  will 
make  a  ground  in  equity." 

Tliis  doctrine  respecting  the  propriety  of  receiving  parol 
evidence,  on  the  part  of  the  plaintiff,  under  circumstances  of 
clear  fraud,  appears  to  have  been  admitted  in  other  modern 
cases.(l)  The  difficulty  has  generally  been  in  carrying  the 
principle  into  practice,  and  in  ascertaining  what  constitutes  a 
fraud.  In  the  case  of  Pember  v.  Mathers,  (2)  Lord  Thurlovv 
allowed  the  plaintiff",  on  a  bill  for  specific  performance,  to  give 
parol  evidence  of  a  promise  by  the  defendant  under  the  follow- 
ing circumstances.  The  Itill  was  filed  by  the  original  lessees  of 
a  leasehold  estate  against  an  assignee  of  the  lease,  on  his  parol 
undertaking  to  indemnify  the  plaintiff"  against  all  rents  and 
covenants,  to  be  paid  or  kept  on  the  part  of  the  lessee,  and  to 
execute  a  bond  for  such  an  indemnity.  The  assignment  had 
been  made  by  a  sale  by  auction;  and  the  conditions  of  sale  did 
not  stipulate  the  indemnity;  but  it  rested  only  on  parol  evidence. 
This  evidence  was  objected  to  as  inadmissible,  on  the  ground, 
that,  where  'he  parties  have  entered  into  a  written  agreement, 
no  parol  evidence  could  be  adnjitted  to  increase  or  diminish 
such  agreement.  Lord  Thurlow  said,  "  Tlie  ■  rule  is  right; 
but    where  the    objection   (to    the  omission    of  an    article)   was 

(1)  See   Marquis     of   Townsend     v.         (2)   1  Cm.  Ch.  C.  51. 
Stangroom,  6  Ves.  338. 


572  Of  the  Admissibility  of  Parol  Evidence,     [Cli.  10. 

formally  made,  and  promised  by  the  other  party  to  be  rectified,  it 
comes  among  the  string  of  cases,  where  it  is  considered  as  a  fraud 
upon  the  rule  of  law."  As  some  doubt  arose,  whether  the  evidence 
was  sufficient  to  establish  the  parol  undertaking  to  indemnify,  en- 
tered into  by  the  defendants,  Lord  Thurlow  directed  an  issue  to  be 
tried,  whether  such  promise  was  made  on  the  day  of  the  execution 
of  the  assignment;  and,  tliis  being  found  in  the  affirmative,  the 
plainiift'  had  a  decree  for  a  specific  performance.  In  speaking,  how- 
ever, of  the  case  of  Pember  v.  Mathers,  the  late  Master  of  the  Rolls 
appears  to  have  entertained  some  doubt,  how  far  it  would  be  proper 
to  go  the  length  of  the  doctrine  there  laid  down,  or  to  decree  a  spe- 
cific performance  on  the  ground  of  such  a  promise. (l)(s) 

It  does  not  appear  from  any  reported  case,  that  the  plaintiff 
has  been  allowed  to  give  parol  evidence,  varying  a  written  agree- 
ment, on  the  ground  of  mistake  or  surprise.  In  the  case  of 
Joynes  v.  Siathan),(2)  indeed,  where,  on  a  bill  for  the  specific  per- 
formance of  an  agreement  for  the  lease  of  a  house  at  a  certain 
rent,  the  defendant  was  admitted  to  prove  by  parol  evidence, 
that  the  agreement  was  for  rent  clear  of  all  taxes.  Lord  Chan- 
^  cellor  Hardwicke,    after  observing  that    "  the  defendant    had    a 

rightto  insist,  either  on  account  of  an  omission,  mistake,  or  fraud, 
that  the  plaintifi:'  should  not  have  a  specific  performance,"  is  re- 
ported to  have  added — "  Suppose  the  defendant  had  been  the 
plaintiff",  and  had  brought  a  bill  for  the  specific  performance  of 
the  agreement,  I  do  not  see  but  that  he  might  have  been  allowed 
the  benefit  of  disclosing  this  to  the  Court,  because  it  was  an 
agreement  executory  only,  and,  as  in  leases  there  are  always  cove- 
nants relating  to  taxes,  the  Master  will  enquire,  what  the  agree- 
ment was  as  to  taxes;  and  therefore  the  proof,  offered  here,  is 
not  a  variation  of  the  agreement,  but  is  explanatory  only  of 
what  those  taxes  were."  Lord  Redesdale,  in  a  very  late  case, (3) 
comtnenting  on  this  passage,  observed,  "  That  the  words  do  not 
appear  to  import  any  thing  positive;"  and  with  respect  to  the 
case,  which  Lord  Hardwicke  conceived  might  possibly  be  made, 
where   even  a  plaintiff  might  be   admitted  to  show  an  omission 

(1)  See  14  Ves.  524.  Lef  39.     See   also  4    Bro  Ch.  C.    518. 

(2)  3  Atk.  388.  G  Ves.  335,  n.;  and  7  Ves   220. 

(3)  Cliiian   v.    Cooke,    1   Sclioal.    & 


(s)  See  Note,  997,  p.  1484. 


Sect,  3.]  in    Courts  of  Equity.  573 

in  a  written  instrument  as  well  on  the  ground  of  mistake  as  of 
fraud,*  added,  that  he  could  find  no  decision  except  the  contrary 
way. 

In  the  case  of  the  IMarquis  of  Townsend  v.  Stangroom,(l)  Lord 
Eldon,  after  observing,  "that  it  was  competent  to  a  court  of  equity 
(for  the  purpose  of  enabling  it  to  determine  whether  it  will  specifi- 
cally execute  an  agreement)  to  receive  evidence  of  the  circum- 
stances under  which  it  was  obtained,"  added,  "  and  I  will  not  say, 
that  there  are  no  cases,  in  which  it  may  be  received  to  enable  the 
Court  to  rectify  a  wrilttn  agreement  upon  surprise  or  mistake,  as 
well  as  fraud :  jiroper  irrefragable  evidence,  as  clearly  satisfactory, 
that  there  has  been  mistake  or  surprise,  as,  in  the  other  case,  that 
there  has  been  fraud.  I  agree  that  those  producing  evidence  of  mis- 
take or  surprise,  either  to  rectify  an  agreement,  or  calling  upon  the 
Court  to  refuse  a  specific  performance,  undertake  a  case  of  great  dif- 
ficulty; but  it  does  notfollow,  that  it  is  therefore  incompetent  to  prove 
the  actual  existence  of  it  by  evidence."  A  specific  performance 
was  in  this  case  sought,  with  a  variation  intended  to  be  introduced 
by  parol.  And  Lord  Eldon  stated,  "  he  would  not  say,  that,  upon 
the  evidence  without  the  answer,  he  should  not  have  had  so  much 
doubt  whether  he  ought  not  rectify  the  agreement,  as  to  take 
more  time  to  consider  whether  the  bill  should  be  dissmissed;  but 
the  evidence  must  be  taken,  due  regard  being  had  to  the  an- 
swer;(2)  and  the  Court  is  not  to  decide  upon  the  allegation  as  to 
the  probability  against  the  answer."  The  bill  was  accordingly 
dismissed,  but  without  costs. 

The  later  case  of  Woollam  v.  Heam(3)  determined  by    Sir 

W.  Grant,   Master  of  the  Rolls,  on  great  consideration,  sets  the 

doctrine  of  the  courts  of  equity  on  this  subject  in  a  very  distinct 

and  clear  point  of  view.      The  plaintiff  there  filed  a  bill  for    the 

(1)  6  Ves.  338.  Ch.  C.  168.     1  Ves.  jun.  241. 

(2)  And  see  1  Bro.  Ch.  C.  92.    3  Bro.         (3)  7  Ves    211. 


*  The  words  of  Lord  Redesdale,  in  the  report,  are  as  follows  : — "  There 
seems  to  have  been  something  of  a  floating  idea  in  the  mind  of  Lord  Hardwickc, 
that  by  possibility  a  case  might  be  made,  in  which  even  a  plaintiff  might  be  admit- 
ted to  show  an  omission  either  by  mistake  or  fraud.  However  I  can  find  no  decis- 
ion except  the  contrary  way." 


574  Of  the  Admissibility  of  Parol  Evidence,     [Ch.  10. 

specific  ijerforniance  of  an  agreeineui  for  a  lease;  the  bill  stated 
that  the  rent  of  73Z.  10s.,  specified  in  the  agreement,  was  inserted 
by  mistake,  or  with  some  unfair  view;  the  real  agreement  being, 
that  the  plaintiff  was  to  have  the  lease  upon  the  same  rent  as  the 
defendant  paid  to  his  lessor,  and  that  he  the  defendant  did  not  pay 
more  than  GO/.  The  defendant  in  his  answer  admitted,  he  might 
have  said,  that  the  plaintiff  should  have  the  lease  upon  the  same 
terms,  not  meaning  the  same  rent,  but  upon  terms  on  the  whole 
equally  advantageous;  insisting,  that  as  he  had  laid  out  a  great 
deal  of  money,  the  plaintiff  would  upon  the  whole  have  as  good  a 
bargain.  The  plaintiff  offered  parol  evidence  to  prove,  that  he 
was  to  have  it  on  the  same  terms  as  the  defendant  had  it,  and  to 
show  that  nothing  could  be  meant  by  the  expression  but  the  same 
rent;  nothing  being  in  discussion  between  them  but  the  amount 
of  rent.  The  question  was,  whether  this  evidence  was  admissible. 
The  Master  of  the  Rolls,  in  giving  judgment,  said,  that"  by  the 
rule  of  law,  independent  of  the  statute  of  frauds,  parol  evidence 
could  not  be  received  to  contradict  a  written  agreement.  To  ad- 
mit it  for  the  purpose  of  proving,  that  the  written  instrument  does 
not  contain  the  real  agreement,  would  be  the  same  as  receiving  it 
for  every  purpose.  It  was  for  the  purpose  of  shutting  out  that  in- 
quiry, that  the  rule  of  law  was  adopted.  Though  the  writter 
instrument  does  not  contain  the  terms,  it  must  in  contemplation  ot 
law  be  taken  to  contain  the  agreement,  as  furnishing  better  evi- 
dence, than  any  that  parol  can  supply.  If  this  had  been  a  bill 
brought  by  the  defendant^  for  a  specific  performance,"  added  the 
Master  of  the  Rolls,  "  I  should  have  been  bound  by  the  decisions 
to  admit  the  parol  evidence,  and  to  refuse  a  specific  performance. 
But  this  evidence  is  offered,  not  for  the  purpose  of  resisting,  but 
of  obtaining  a  decree;  first,  to  falsify  the  written  agreement,  and 
then  to  substitute  in  its  place  a  parol  agreement,  to  be  executed 
by  the  Court.  Thinking  as  I  do,  that  the  statute  has  been 
already  too  much  broken  in  upon  by  supposed  equitable  excep- 
tions, I  shall  not  go  farther  in  receiving  and  giving  effect  to 
parol  evidence,  than  I  am  forced  by  precedent.  There  is  no 
case,  in  which  the  Court  has  gone  the  length  now  desired.  But 
two  cases(l)  are  produced,  in  which,  it  is  said,  there  is  an  in- 
timation from  Lord    Hardwicke   to    that   effect.     Upon   this,   it 

(1)  Walker  v.  Walker,  2  Alk.  98.      Joynes  v.  Statham,  3  Atk.  388- 


Sect.  3.]  in  Courts  of  Equity,  bib 

might  be  sufficient  to  say,  it  was  not  decided.  But  it  is  evident 
from  the  manner,  in  which  that  great  Judge  quahfies  his  own 
doubts,  that  he  thought  it  impossible  to  maintain  such  a  proposi- 
tion as  the  plaintiff  is  driven  to  maintain.  In  Walker  v.  Walker,  it 
is  to  be  observed,  first,  that  the  parol  evidence  was  not  offered  for  the 
purpose  of  contradicting  any  thing  in  the  written  agreement.  It 
was  admitted,  that,  as  far  as  it  went,  it  stated  the  true  meaning; 
but  it  was  contended  by  the  defendant,  that  there  was  another  col- 
lateral agreement,  which  the  plaintiff  ought  to  execute,  before  he 
could  have  the  benefit  of  the  written  agreement;  it  was  evidence 
too,  offered  in  defence,  to  resist  a  decree.  The  evidence  offered  in 
this  case, "added  the  Masterofthe  Rolls,  concluding  his  judgment, 
'' is  to  vary  an  agreement  in  a  material  part;  and  having  varied 
it,  to  procure  it  to  be  executed  in  another  form.  There  is  nothing 
to  show  that  this  ought  to  be  done."  The  proposed  evidence  was 
accordingly  rejected;  and  the  bill  was  dismissed,  without  costs. (f) 

Where  a  written  agreement  has  been  varied  by  parol,  and  Rule,  in  case 
there  has  been  such  a  part-performance  of  the  parol  variation,  for^nance.'^" 
as  would  have  procured  it  to  be  specifically  executed,  provided 
it  had  formed  a  part  of  the  original  agreement,  the  plaintiff,  in 
that  case,  will  be  adiiiitted  to  give  evidence  of  such  subsequent 
unwritten  variation.  As  to  v\hat  constitutes  a  part-performance, 
Lord  Redesdale,  in  a  late  case,  (J)  has  laid  down  the  following 
rule, — that  "  notliing  is  to  be  considered  as  a  part-performance, 
which  does  not  put  the  [)arly  into  a  situation  that  is  a  fraud  upon 
him,  unless  the* agreement  is  performed:  for  instance,  if  upon  a 
parol  agreenient  a  man  is  admitted  into  possession,  he  is  made 
a  trespasser,  and  is  liable  to  answer  as  a  trespasser,  if  there  be 
no  agreement.  This  is  put  strongly  in  the  case  of  Foxcraft  v. 
Lister  ;  (2)  there  the  party  was  let  into  possession  on  a  parol 
agreement,  and  it  was  said,  that  he  ought  not  to  be  liable  as 
a  wrong-doer,  and  to  account  for  the  rents  and  profits,  because 
he  entered  in  pursuance  of  the  agreement.  Then  for  the  purpose 
of  defending  hin)self  against  a  charge,  which  might  otherwise  be 
made  against  him,  such  evidence  was  admissible;  and  if  it  was 
admissible  for  such  purpose,  there  is  no  reason  why  it  should  not 

(1)  Clinan  v.    Cooke,    1    Schoal.    &         (2)  2  Vern.  456. 
Lef.  41.     14  Ves.  3SS. 


{t)  See  Note  998,  p.  1485. 


576  Of  the  Admissibility  of  Parol  Evidence^  [Ch.  10. 

be  admissible  throughout.  That,"  continued  Lord  Redesdale,  "  I 
apprehend  to  be  the  ground,  on  which  courts  of  equity  have  pro- 
ceeded, in  permitting  part-performance  of  an  agreement  to  be  a 
ground  for  avoiding  the  statute;  and  I  take  it,  tlierefore,  that 
nothing  is  to  be  considered  as  part-performance  which  is  not  of 
that  nature.  Payment  of  money  is  not  part-performance,  for  it 
may  be  repaid;  and  then  the  parties  will  be  just  as  they  were  be- 
fore, especially  if  repaid  with  interest.  ]5ut  the  great  reason,  why 
part-payment  does  not  take  such  an  agreement  out  of  the  statute, 
is,  that  the  statute  has  said,  in  another  case,  namely,  with  respect 
to  goods,  that  it  shall  operate  as  a  part-performance;  and  the 
courts  have  therefore  considered  this  as  excluding  agreements  for 
lands,  because  it  is  to  be  inferred,  that  when  the  legislature  said  it 
should  bind  in  the  case  of  goods,  and  were  silent  as  to  the  case  of 
lands,  they  meant  it  should  not  bind  in  the  case  of  lands. "(«) 

Mistakes  in  3.   Mistakes  and  misapprehensions,  in  the  drawers  of  deeds  or 

rected.^""^""  ^^  written  agreements,  are  a  subject  for  relief  in  courts  of  equity, 
and  may  be  rectified  according  to  the  true  intention  of  the  par- 
ties. (1)  (v)  Thus,  on  a  bill  to  rectify  a  mistake  in  a  policy  of 
insurance,  which  the  plaintiff  suggested  to  have  been  made  too 
general,  and  contrary  to  the  intention  of  the  parties,  Lord  Hard- 
wicke  said,  (2)  there  could  be  no  doubt,  but  that  the  Court  of 
Chancery  had  jurisdiction  to  relieve  in  respect  of  a  plain  mistake 
in  contracts  in  writing,  as  well  against  fraud  in  contracts  ;  so 
that  if  reduced  into  writing,  contrary  to  the  intention  of  the  par- 
ties on  proper  proof  that  would  be  rectified.  ".This,"  as  Lord 
Eldon  has  observed,  (3)  "is  loose  in  one  sense,  as  it  leaves  to 
every  Judge  to  say,  whether  the  proof  is  that  proper  proof, 
which  ought  to  satisfy  him."  The  principal  evidence  on  the  part 
of  the  plaintifF,  in  this  case,  was  the  deposition  of  a  witness, 
who  had  transacted  the  business  for  the  company  the  (defend- 
ants;) but  this  evidence  appeared  to  the  Court  not  sufficiently 
certain  to  be  relied  upon.  Lord  Hardwicke  observed,  that  the 
proof  in  such  a  case  ought  to  be  the  strongest  possible;  and  as 
it  did  not  sufficiently   appear    to  the  Court,  that  the  policy  had 

(1)2  Atk.    203.     Stangroom  v  Mar-  Motteux  v.  Lond.  Assur.    Comp.   1  Atk. 

quisof  Townsend,  6   Ves.   32S.     Beau-  545.     Thomas   v.    Fraser,   3  Ves.  399. 

iiiont  V.  Bramley,   1  Turn.  Ch.  R.  41.  10  Ves.  227. 

(2)  Henkle  v.  Roy.  Ex.  Assur.  Camp .  (3)  6  Ves.  333, 
1  Ves.  318,  cited  6  Ves.  333.     See  also 

(ii)  See  Note  999.  p.  1488.  (v)    See  Note  1000,  p.  1486. 


Sect.  3.]  in  Courts  of  Eqnity.  oil 

been  framed  contrary  to  the  intention  and  real  agreement  of  the 
parties,  the  bill  was  dismissed.  In  the  case  of  Baker  v.  Paine, 
on  a  bill  filed  for  an  account  under  a  written  agreement,  the  min- 
utes and  calculations,  which  had  been  previously  made  by  the  par- 
ties, were  admitted  in  evidence,  in  order  to  prove  a  mistake  made 
in  the  agreement  by  the  person  employed  to  draw  it.  (I)  And  in 
a  variety  of  cases,  where  settlements  have  been  drawn  by  mistake, 
contrary  to  the  instruction  of  the  parties,  the  mistake  has  been 
rectified  by  courts  of  equity,  and  the  settlement  made  conformably 
to  the  instructions.  (2)  The  Court,  however,  will  expect  full  and 
satisfactory  evidence  of  the  mistake  and  misapprehension  of  the 
party's  intention,  before  it  will  alter  a  settlement.  In  one  case, 
where  the  parol  evidence  of  the  attorney,  who  had  received  verbal 
instructions,  was  offered,  the  Court  held,  that  as  nothing  appeared 
in  writing  under  the  hands  of  the  parties  to  show  their  intention, 
the  settlement  could  not  be  altered;  (3)  and  in  another  case,  Sir 
Thomas  Clarke  is  reported  to  have  said,  that  he  did  not  give  a  posi- 
tive opinion  as  to  the  head  of  mistake,  but  he  did  not  think  the 
Court  had  relied  on  parol  evidence  only.  (4)  (?o) 

4.  Provisions   in  wills   have  in   certain  cases   been  enlarged  by  Trusts  raised 

,         •  ,  ,  •  •  •       1  .  ^  •'    \n  equity. 

parol  evidence,  and  trusts  m  equity  raised,  as  against  execu- 
tors or  other  persons  claiming  an  interest  under  wills,  where  it 
has  appeared,  that  the  testator  intended  to  make  a  further  ,pr0' 
vision  in  his  will,  but  omitted  to  insert  it  on  receiving  a  promise, 
that  notwithstanding  such  omission,  his  intention  should  be  car- 
ried into  effect,  {x)  Thus,  in  the  case  of  Oldham  v.  Lichford,  (5) 
a  witness  vvas  allowed  to  prove  that  the  defendant,  who  was  the 
testator's  executor  and  devisee  of  his  real  estate,  had  promised 
the  testator,  that  he  would  pay  the  annuity  bequeathed  to  the 
plaintiff,  and  that  otherwise  the  testator  would  have  charged  the 
real  estate  with  the  payment.  And  on  this  evidence,  it  was 
decreed  at  the  Rolls,  that  the  real  estate  should  be  charged  with 
the  annuity  ;  and   this  decree   was  afterwards   affirmed,  on   appeal 

(1)  Balier  v.  Paine,  1  Ves.  457,  cited  (3)  Harvvcod  v.  Waliis,  cited  2   Vcs. 
in  Ricli  V.  Jackson,  6  Ves.  336,  n.  195. 

(2)  Randal    v.    Randal,    2  P.   Wins.  (4)   1  Dickens,  295.     And  sec    Slicr- 
469.  Jenkins  v.  Q,uincliant,  5  Ves.  596,  gold  v.  Boone,  13  Ves.  373,  37(j. 

n    Barstow    v.    Kilvington,  5    Ves.    59.  (5)   2  Vern    506. 

Butt  V.  Barlow,  3  Bro.  Ch.  C.  451. 

(w)  See  Note  1001,  p.  1487.       (a-)  See  Note  1002,  p.  14S7. 

Vol.  I.  73 


578  Of  the  J dmissibilitij  of  Parol  Evidence,  ^c.  [Ch.  10. 

to  the  Court  of  Chancery.  In  a  later  case,  (1)  where  a  bill  was 
filed  against  an  executor  and  residuary  legatee,  to  have  a  bequest 
enlaged,  it  appeared  from  a  paper  written  by  the  defendant  him- 
self, that  the  testator,  a  few  days  before  his  death,  had  mentioned 
to  him  what  he  had  bequeathed  to  the  plaintiff,  and  that  it  was  his 
wish,  that  he  should  have  a  larger  sum;  it  was  further  proved, 
that  after  the  testator's  death,  when  the  paper  was  shown  to  the 
defendant,  he  promised  to  perform  the  same  according  to  the 
testator's  request;  another  witness  proved,  that  the  testator  men- 
tioned to  him,  in  the  presence  of  the  defendant,  the  annuity,  which 
he  had  bequeated  to  the  plaintiff,  and  that  it  was  his  desire  he 
should  have  a  larger  annuity,  mentioning  the  sum  ;  that  the  tes- 
tator then  requested  the  defendant  to  see  such  annuity  paid  to  the 
plaintiff,  and  the  defendant  promised  it  should  be  done,  as  if  it 
had  been  expressed  in  the  will;  and,  lastly,  that  the  witness  and 
the  defendant  desired  the  testator  to  send  for  some  person  to  draw 
a  new  will,  which  the  testator  refused  to  do,  saying,  he  would 
leave  it  to  the  defendant's  generosity.  "  Upon  this  evidence," 
said  the  Master  of  the  Rolls,  "the  question  is,  whether  by  re- 
posing that  trust  in  the  defendant,  the  testator  was  not  prevented 
from  making  a  new  will.  The  defendant  ought  to  have  told  him, 
that  if  he  did  not  put  it  in  his  will,  he  would  not  do  it.  Instead  of 
that,  he  promised  to  do  it;  upon  which  the  testator  refused  to 
make  a  new  will.  I  am  quite  relieved,"  added  the  Master  of  the 
Rolls,  "  from  any  difficulty  as  to  the  statute  of  frauds.  The  ques- 
tion is,  whether  the  confidence,  that  the  defendant  would  perform 
the  irust  which  he  undertook,  did  not  prevent  the  testator  from 
making  a  new  will."  The  Court  accordingly  ordered  the  defend- 
ant to  pay  the  increased  sum  out  of  the  assets,  with  costs;  and, 
if  the  assets  were  not  sufficient  for  the  costs,  that  he  should  pay 
them  personally,  {y) 

(1)  Barrow  v.  Greenongh,  3  Ves.  152. 


(y)  See  Note  1003,  p.  1487. 
THE  END  OF  THE  FIRST  BOOK. 


INDEX  TO  VOL  T 


A. 

Abatement, 

plea  of, 

not  necessary,  when    one   of  several  partners  or  co-conlraclors  sues 

alone  on  the  contract,  210. 
otherwise  in  action  of  tort,  not  founded  on  the  contract,  210. 
necessary  when  one  of  several    partners   or  co-contractors  is  sued  on 
the  contract,  209. 

ACCEPTANCE 

vacated  hy  foreign  judgment,  350. 

ACCEPTOR 

of  bill,  when  competent,  67. 

in  an    action  against   several  persons,  as  acceptors,  an  admission  of  the 

partnership  by  one,  is  evidence  against  him,  of  a  joint  promise,  92. 
may  show  that  he  had  no  effects  of  drawer,  67. 

ACCESS, 

want  of,  proved  by  circumstantial  evidence,  158. 

not  to  be  proved  by  the  wife,  87,  241. 

not  even  after  the  husband's  death,  87. 

nor  by  the  declarations  of  deceased  parents,  241. 

ACCESSARY.     See  tit.  Principal. 

conviction  of  principal,  evidence  against,  331.  , 

although  judgment  drawn  up  irregularly,  331,  n. 
principal,  competent  on  trial  of,  40. 
acquittal  of  accessary,  not  a  bar  to  a  charge  of  being  principal,  323. 

ACC05IPL1CE, 

character  of,  36. 

his  title  to  mercy,  38. 

motion  to  admit,  39. 

evidence  of,  when  jointly  indicted,  40. 

cannot  plead  his  being  admitted,  in  bar  to  an  indictment,  38. 

on  what  condition  admitted  to  give  evidence,  88. 

reasons  for  admitting,  36. 

refusing  to  give  evidence,  may  be  tried,  39. 


580  INDEX  TO  VOL.  1. 

ACCOMPLICE— con/inueJ. 

not  compellable  to  answer  us  to  other  oilences,  276. 
to  be  believed  with  caution,  37. 
in  felonj,  competent,  36. 

though  promised  a  pardon  or  reward,  39. 
though  separately  indicted,  39. 
though  convicted,  if  not  attainted,  39. 
where  acquitted,  to  be  used  as  witness,  40. 
in  misdemeanor,  competent,  4L 
in  trespass,  competent,  41. 
dying  declarations  of,  236. 
act  of,  when  evidence  against  the  rest,  94. 

rule  as  to  the  acts  or  declarations  of  co-conspirators   being  evidence, 
95. 
principal  felon,  witness  against  accessory,  40. 
confirmatory  evidence,  how  far  necessary,  4L 

the  sort  of  confirmatory  evidence  necessary,  41,  42. 
the  principle   upon  which  the  evidence  of  an  accomplice,    when  con- 
firmed, is  received,  42. 
informers,  acting  as  accomplices,  42. 
remark  on  such  evidence,  43. 

ACQUITTAL, 

proof  of, 

date  of,  variance  in,  214. 
of  person,  as  accessory,  not  a  bar  to  a  charge  of  being  princi  pal,  323, 
in  Court  of  Exchequer,  its  effects,  355. 
in  criminal  prosecution,  its  effect,  350. 
on  indictment  for  non-repair  of  road,  its  effect,^  340,  n, 
by  foreign  court,  its  effect,  350. 

ACT  OF  PARLIAMENT. 

gereral  act,  317. 

distinction  of  public  and  private,  317. 

preamble,  evidence,  318. 

taken  notice  of  judicially,  318. 

when  to  be  pleaded,  319. 

when  judicially  noticed,  318. 

proof  of,  383. 

private  act,  317. 

when  public  as  to  particular  clauses,  318. 

taken  notice  of,  without  pleading,  when,  318. 

reco.'^nized  by  public  act,  318. 

proof  of,  383. 

special  clause  as  to  proof,  333. 

proof,  as  against  a  party  acting  under  it,  384. 

ACT  OF  STATE, 

proved  by  Gazette,  407. 

of  foreign  government,  how  proved,  402. 


INDEX  TO  VOL.  I.  5QI 


ACTS  OF  OWNERSHIP, 

in  other  portions  of  property,  174. 

ACTS  OF  PARTY, 

proving  under  commission  of  bankruptcy;  107. 
not  objecting  to  notice  to  quit,  108. 
ADDRESS, 

from  the  lords  to  the  king,  proved  by  the  Journals,  406. 
to  the  king,  proved  by  the  Gazette,  407. 

ADMINISTRATION.     See  Letters  of. 

granted  without  jurisdiction,  void,  344. 

how  granted,  398. 

letters  of,  proved  by  certificate,  398. 

by  original  book  of  acts,  398. 

by  examined  copy,  398. 
not  evidence  of  death,  343. 
disproved,  by  showing  bona  notabilia,  344. 

or  by  showing  a  repeal  of  the  letters,  344. 

or  forgery,  344. 

ADMINISTRATOR.     See  tit.  Executor. 

surety  for  by  the  bond,  competent  for  defendant,  52. 
ADMIRALTY, 

sentence  of,  in  questions  of  prize,  346. 

effect  of,  346. 

when  conclusive,  346, 

proof  of,  393. 

sentence  of  foreign  court  of,  347. 

effect  of,  347,  348. 

when  conclusive,  347. 

conclusive  of  what,  348. 

when  not  conclusive,  349. 

when  not  admissible,  349. 

ADMISSION, 

what  amounts  to  an  admission,  107. 
limitation  of  rule,  109. 
proved  by  arbitrator,  109. 
by  witness 

of  being  guilty  of  perjuiy,  will  not  render  imcompetent,  SO. 
or  of  felony,  30. 
by  nominal  party,  90. 
by  petitioning  creditor,  91. 
by  owner  of  ship,  91. 
by  one  of  several  trustees,  91,  n. 
by  one  of  several  corporators,  91,  n. 
by  person  interested  in  policy,  92. 
by  joint  maker  of  note,  93. 
by  party  to  suit,  evidence  against  him,  89. 

before  or  after  commencement  of  suit,  89. 

in  writing  or  by  parol,  89. 


5S2 


INDEX  TO  VOL.  I. 

ADMISSION— co/»/»/i»e(i. 

bj  party,  ihoagh  onlj  truttoe,  90. 

interested,  thougli  not  party  on  record,  DO,  01. 
rated  iiiliabitant,  in  case  of  settleiiipnt,  91. 
for  wlioiii  the  action  is  brought,  91. 
under  treaty  or  compromise,  108. 
limitation    of  the  rule,  109. 
by  counsel,  whether  evidence,  106. 
by  accounting  with  another,  227. 
by  acknowledgment  of  title  on  former  occasion,  227. 
by  receipt  of  tithes,  227. 
of  assignment  of  lease,  228. 
of  bankruptcy,  229. 
of  composition  for  tithes,  229. 
ofFer    to    pay,    by    way    of  compromise,  not    evidence    of  admission    of 

a  debt,  108. 
limitation  of  rule,  109. 
dispenses  with  formal  proofs,  215. 
by  deceased  person,  against  interest,  255. 
by  agent  of  party,  when  evidence  against  the  principal,  101. 

proof  of  agent's  admission,  99. 
on  record,  by  pleading,  170. 
by  pleading  guilty  to  assault,  effect  of,  338. 
whole  admission  to  be  taken  together,  110. 
effect  of,  in  dispensing  with  strict  proof,  226. 
acts  of  party  when  amounting  to  aduii-ssion,  107,  109,  227. 
^  taking  tithes,  227. 

taking  tolls,  227. 

proving  debt  under  commission,  107. 
by  agent  of  party,  when  evidence  against  the  principal,  101. 

proof  of  agent's  admission,  99. 
by  attorney  of  party,  105. 
when  admissible,  106. 
propositions  by  attorney,  106. 
proof  of  such  propsitions,  106. 

admission  of  the  execution  of  an  instrument,  by  the  attorney,  dispenses 
with  the  testimony  of  subscribing  witness,  105,  466. 
proof  of  his  being  attorney  for  the  party,  106. 
by  guardian  of  party,  89. 

not  admissible  against  the  minor,  89. 
by  person  jointly  interested  with  party,  92. 
by  wife  of  party,  in  a  business  of  which  she  had  the  exclusive  management 

85. 

admission  of  debt  due  for  goods  furnished  to  her,  86. 
admission  as  to  the  terms  of  hiring  servant,  85. 
by  partner  of  party,  party  to  suit,  92. 

not  part  to  suit,  92. 


INDEX  TO  VOL.  I.  583 

ADMISSION— coH/uj«erf. 

by  co-conspirator,  94. 

by  co-defendant,  92. 

by  co-trespasser,  93. 

on  record,  170. 

admission  in  recital  of  deed,  89. 

in  grant  to  a  corporation,  89. 

in  answer  in  chancery,  89. 
in  examination  of  bankrupt,  89. 
before  arbitrators,  109. 
wiiole  to  be  taiien  together,   110. 

ADULTERY, 

confessions  of  wife  not  evidence  of,  for  husband,  82. 
conversations  between  her  and  defendant,  evidence  of,  against 

him,  8  2. 
manner  of  plaintiff 's  living  with  his  wife,  may  be  shown,  82. 
wife's  letters  to  defendant,  not  evidence  of,  82. 
wife's  declaration,  in  eloping,  when  evidence,  2.34.  . 

AFFIDAVIT, 

on  putting  off  trial,  17. 
by  atheist,  21. 

convict,  28. 

quaker,  in  his  own  defence,  25. 
proof  of  contents,  against  party  using  it,  104. 
when  evidence  against  party,  379. 
proof  of  swearing,  379. 
proof  of,  when  filed,  379. 
when  not  filed,  379. 

AFFIRMATION, 

of  quaker,  25. 

rule  in  civil — in  criminal  cases,  25. 

AFFIRMATIVE, 

of  issue  to  be  proved,  194. 

examples  to  illustrate  the  rule,  194,  195. 

where  breach  of  duty  is  imputed,  195. 

on  prosecution  for  coursing  deer,  196. 

in  action  on  game  laws,  198. 

in  assumpsit  on  plea  of  infancy,  199. 

where  presumption  of  law  is  in  favor  of  the  other  party,  197. 

where    issue  is  on  the  life   or  death  of   a  person,  the   proof  lies 
upon  the  party  asserting  the  death,  197. 
a  fact   peculiarly  within    the  knowledge  of   n  party  to   be   proved    by  him, 
198. 

AGENT, 

proof  of  power,  104. 
general  authority,  104. 


584  INDEX  TO  VOL.  I 

AGENT— -continued. 

how   far  the   act    of   an   agent   will   affect   n    principal   in   criminal    ca- 
ses, 102. 
of  prosecutor,  conduct  of,  how  fur  examinable  by  the  defendant  in  a  prosecu- 
tion, 103. 
to  discount  a  bill,  G2. 
for  receiving  money,  62. 

admission  by,  when  evidence  against  principal,  102. 
at  the  time  of  the  contract,  100,  101. 
within  the  scope  of  authority,  101. 
receipt  by  agent,  99. 
letter  of  agent,  100. 
by  a  clerk,  100. 
proof  of  admission,  99. 
of  wife  as  agent  of  husband,  85. 
proof  of  agency,  103. 

by  the  admission  of  the  principal,  104. 
by  the  agent,  104. 

by  the  affidavit  of  agent,  used  by  principal,  104. 
by  showing  general  authority,  104. 
declaration  by  person,  referred  to  for  information,  101. 

by  person  employed  to  make  certain  propositions,  101. 
by  person  employed  as  interpreter,  101. 
competent  witness  fcr  principal,  when,  129. 
to  prove  a  sale,  129. 
who  an  agent  within  the  rule,  129. 

a  person,  having  bought  goods  in  his   own   name,  cannot    prove   that  he 
bought  as  agent  for  the  defendant,  130. 
when  not  competent,  on  ground  of  liability  to  costs,  62. 
not  competent  to  prove  contract  well  executed,  56,  130. 
books  of,  rule  for  production,  438. 
parol  evidence  admissible  to  show  agency  in  contract  under  statute 

of  frauds,  561. 
in  making  a  policy,  104. 
of  officer,  communications  to,  284. 
of  police,  communications  to,  285. 

AGREEMENT.     See  tit.  Assumpsit,  Contract,  and  Statute  of  Frauds. 

blank  in,  supplied  by  parol  evidence,  when,  540. 

purporting  to  be  a  compromise,  evidence,  when,  108. 

for  lease,  when  a  present  demise,  526. 

discharge  by  parol,  when,  563. 

mistake  in  drawing  of,  when  and  how  rectified ,  576. 

within  statute  of  frauds,  parol  evidence  when  admissible,  560,  562 

parol  evidence  not  allowed  to  vary  or  contradict,  559. 


INDEX  TO  VOI-.  I.  585 

AGREEMENT— co;i/i«ue(i. 

as,  to  show  that  a  ditlerent  quantity  of  goods  was  contracted  for,  6G0. 

otherwise,  as  to  a  variation  in  time  or  7node  of  delivery,  560. 
declaration  of  auctioneer,  not  to  vary  conditions  of  sale,  660. 
stamp,  wiien  requisite,  when  not    524. 
requiring  several  stamps,  510. 
unstamped  copy  of,  evidence,  519. 

for  a  house,  and  also  for  goods  in  it,  to  be  stamped  as  a  lease,  507. 
articles  of  agreement,  under  seal,  to  be  stamped  as  a  deed,  506. 
articles,  by  an  auctioneer,  525. 
for  sale  of  growing  crops,  must  be  stamped,  529. 
parol  evidence  of  unstamped  lost  agreement,  not  admissible,  504. 
part  performance  of,  575. 
specific  performance  of,  567. 

ALTERATION 

of  bill  of  e.'cchange,  requires  a  new  stamp,  when,  511,  512,  513,  516. 
of  policy  of  insurance,  513,  517. 
as  to  time  of  sailing,  514. 
property  insured,  514. 
warranty  of  sea-worthiness,  515. 
of  bill  of  sale  of  ship,  517. 

to  correct   mistakes  in  instruments,  with  consent  of  all   parties,  does  not  re, 
quire  a  new  stamp,  515. 

A  MBKJUITY.     And  see  tit.  Evidence. 

in  writings, 

latent,  explained  by  parol  evidence,  531. 

grant  of  manor  of  S.,  when  two  of  that  name,  531. 
devise  to  two  of  the  same  name,  532. 
mistake  in  devisee's  name,  532,  536. 

in  description  of  premises,  534. 
in  name  of  fund,  533. 
patent,  not  explained  by  parol,  538. 
uncertainty  in  devise,  538. 
omission  of  name  in  will,  539. 
surname  without  christian  name,  539. 
initial  of  surname  only,  539. 
omission  in  written  agreements,  &c.,  540. 
where  writing  not  necessary,  540. 
in  bishop's  register,  540. 
in  surrender  of  copyhold,  540. 
evidence,  when  admissible  to  give  effect  to  a  will,  533. 
with  reference  to  the  estate,  534. 
with  reference  to  the  devisee,  536. 

Vol.   I.  74 


586 

ANCIENT  WRITINGS, 


INDEX  TO  VOL.  I. 


proof  of,  417,  418. 

proof  of  custody,  479. 

secondary  evidence  of,  459. 

found  amongst  court  rolls,  evidence  of  customary  descent,  417. 

as  to  right  of  common,  418. 

though  not  proved  to  be  signed  by  m.ijoiity  of  copy-holders,  418. 

or  by  person  under  whom  the  parties  claim,  41.S. 

usage,  -when  admissible  to  explain,  540. 

will  proof  of,  503. 

ANCIENT  DEMESNE, 

recovery  of  lands  in,  3S6. 

ANNUITY-DEED, 

memorial  of,  proved  by  copy  of  enrolment,  464.  n. 

ANSWER  IN  CHANC  ERY, 

evidence  against  the  defendant,  359. 

evidence  for  him,  if  produced  by  the  other  party,  how  far,  360. 
hearsay  evidence  in,  not  admissible,  360. 
identity  of  the  party  to  be  proved,  394. 
when  used  as  admission,  or  to  contradict,  393. 
to  be  taken  altogether,  not  in  parts,  359. 
but  not  all  equally  credible,  360. 

when  to  prove  incompetency  of  witness,  whole  not  to  be  read,  359. 
examined  copy  of  the  answer  sufficient,  361. 
though  not  signed,  361. 
and  no  decree  passed,  361. 

unless    in    indictment   for   perjury,  or   action   for  malicious  prosecu- 
tion, 361. 
of  defendant,  not  evidence  against  co-defendant,  362. 
of  minor,  by  guardian,  not  evidence  against  him,  362. 

of  occupier  of  land,  evidence  against  a  succeeding  occupier,  in  tithe  cause,  361. 
of  partner,  evidence  of  joint  debt  against  co-partner,  362- 

not  evidence  of  the  partnership,  362. 
of  wife,  whether  evidence  against  her,  after  husband's  death,  362. 
proof  of  answer,  393. 
proof  of  swearing,  394. 

swearing  of  answer  presumed,  when,  393,  394. 
not  on  indictment  for  perjury,  394. 
presumed  in  actions  for  malicious  prosecution,  394. 
examined  copy,  with  proof  of  identity,  394. 
proof  of  bill  necessary,  if  to  be  found,  393, 


INDEX  TO  VOL.  T.  587 

APPOINTMENT, 

to  office, 

evidence  of,  from  proof  of  acling,  226. 
of  overseer,  secondary  evidenco  of,  when  adnjissible,  454. 

APPRENTICE, 

indenture  of,  stamp,  when  presumed,  523. 
agreement  for,  assignment  of,  requires  a  stamp,  .527. 

APPROPRIATION, 

evidence  of,  from  ancient  cliartulary,  430. 

APPROVEMENT, 

ancient  doctrine  of,  37. 

modern  practice,  38.  • 

APPROVER, 

what  he  must  disclose,  37. 
may  be  admitted,  or  refused  by  the  court,  37. 
liable  to  capital  punishment  in  certain  cases,  37. 
See  also  lit.  Accomplice. 
ARBITRATION.     See  lit.  Award. 
ARBITRATOR.     See  lit.  Award. 

may  prove  admissions  made  before  him,  109. 
witness  attending  before,  privileged  from  arrest,  5. 
ARREST, 

parties  privileged  from,  4. 
witness  privileged  from  on  trial,  4. 

before  arbitrator,  6- 
before  insolvent  debtors'  court,  5. 
on  execution  of  writ  of  inquiry,  5. 
before  commissioners  of  bankrupt,  -"• 
before  court  martial,  5- 
how  long  privileged,  4. 

ARSON, 

proof  of  property  found  in  possession  of  prisoner,  170. 

charged  to  have  been  committed  in  the  night-tims,    may  be    proved  to  hava 

been  in  the  day-lime,  207. 
ARTICLES  OF  THE  CHURCH, 

proof  of  the  signature  of,  by  parson  in  action  for  tithes,  not  necessary,  in  the 

first  instance,  195. 

ARTICLES  OF  THE  PEACE, 

exhibited  by  wife  against  hu.sband,  85. 
affidavit  contradicting,  not  to  be  received,  85. 

ARTICLES  OF  WAR, 

proved  by  the  Gazette,  407. 
\SSAULT.     See  til.   Trespass.  "' 

what  the   party   said  at   the   lime  of  receiving  the   hurt,    when   admissible, 
232. 

conviction,  before  a  magistrate   on  the  information  of  injured    parly,  not  evi- 
dence in  an  action  brought  by  same  party,  339. 


588  IN  OKA  TO  VOL.  1. 

ASSAULT — continued 

plea  of  guilty  to  indictment,  vvlielher  evidence,  838. 

several  actions  against    several, — defendant  in  one,    competent  for  defendant 

in  another,  47. 
if   defendant,    under   plea    of  son  assault,    prove  the    assault   on  the  same 

day,  &c.,  plaiiUKf  cannot  prove  tho  assault  on  another  day,  215. 
indictment  for,    with  intent  to   romniil  a  rape — proof  of  woman's  character, 

how  far  admissible.  176. 

ASSIGNEES  OF  BAKRUPT, 

solicitor   to   commission,    when    not   compellable   to    produce    proceedings^ 

142. 
ASSIGNMENT, 
of  lease, 

admission  of,  228. 
of  judgment, 

examined  copy  of  memorial,  evidence,  389-  n. 
of  apprentice,  agreement  for  requires  a  stamp,  527. 

ASSOCIATE, 

accomplice.     See  tit.  Accomplice. 
informer.     See  lit.  Informer. 

ASSUMPSIT.     See  tit.  Agreement,  non  Assumpsit,  &c. 
for  sale  of  goods, 

how  much  of  the  contract  to  be  stated,  207. 
shop-boolt,  when  evidence  of  delivery  of  goods,  263. 
on  proof  of  sale  to  defendant  and  third  person,  that   person  i:t  not  competent 

for  defendant  to  disprove  such  sale,  59. 
captain  of  ship,  competent  to  prove  his   receipt  of  money  for  the  use  of    the 

defendant  (ship-owner,)  66. 
receiver  of  money  for  the  defendant's  use,  competent,  66. 

ATHEIST, 

not  competent  witness,  21. 

ATTACHMENT 

of  witness  for  comtempt,  7. 
when  granted,  7. 
for  refusing  to  attend  before  a  court-martial,  14. 

ATTAINDER 

of  witness,  if  objected,  to  be  proved,  30. 
proof  of,  by  record,  30,  331. 
objection  for,  how  removed,  31,  331. 

ATTENDANCE 

of  witness  at  trial,  mode  of  compelling,  2. 

witness   abroad,    or   going   abroad,    may    be    examined    on    interrogatories, 

when,  14. 
witness     resident    in      India,    or     abroad,    evidence     of     how     procured, 

15. 
inability  to  attend,  from  sickness,  aground  for  putting  ofi'  trial,  16,  17. 


INDEX  TO  VOL    I.  539 

ATTEN  D  A  NCE— con  linued. 

mode  of  procuring, 
in  civil  cases,  2. 

subpoena  ad  tedijicandam,  2. 

how  many  may  be  put  in  one  writ,  1 
service  of,  4. 
subpoena  duces  tecum,  3.. 
before  commissioners  of  bankrupt,  13. 

expenses  must  be  tendered,  14. 
before  commissioners  of  inclosure,  14. 
before  court-martial,  14. 
before  magistrates,  14. 
in  criminal  cases,  8. 

subpeena  ad  testificandum,  8. 

service   of  subpeena    in   diflerent    parts   of    the    king- 
dom, 9. 
process  in  case  the  witness  refuse  to  attend,  9. 
witness  cannot    refuse    to   attend,  though  expenses   not 

tendered,  13. 
recognizance,  8. 

witness  for  prisoner,  formerly  not  sworn,  21 ,  n. 
habeas  corpus  ad  testificandum,  5. 
when  the  writ  lies,  5. 
how  sued  out  and  served,  5. 
for  prisoners  to  come  before  commissioners,  6. 
or  before  court-martial,  6. 
or  sittings  at  Nisi-Prius,  6. 
or   before  justices  of  great  sessions  in 

Wales,  6. 
or  county  palatine  of  Chester,  6. 
application  for  writ  of,  5. 
expense  of  witness,  in  civil  cases,  6. 

coming  from  abroad,  7. 
compensation  for  loss  of  lime,  7. 
expense  of  witness  in  criminal  cases,  9. 
felonies,  9. 
misdemeanors,  12. 
privilege  of  witness,  from  arrest  on  trial,  4. 
when,  4. 
how  long,  4. 
before  arbitrator,  6. 
before  insolvent  debtors'  court,  5. 
before  court-martial,  5. 
in  going,  staying,  aad  returning,  4. 
proceedings  against,  for  non-attendance,  7. 
attachment,  7. 


590  INDEX  TO  VOL.  I. 

ATFENDANCL— continued. 

action  on  cnae,  for  damages,  7. 
or  on  Stat.  5  Eliz.,  7. 

ATTESTING  WITNESS 

may  impeach  e.tecution  of  deed  or  will,  41,  SOS. 
character  of  attesting  witness  deceased,  SOS. 
proof  of  writings  by,  464,  465. 

cannot  be  objected  to,  as  interested,  by  one  who  asked  bim  to  at- 
test, knowing  his  interest,  466. 
proof  by,  when  waived,  466. 
what  excuses  absence  of,  473,  473,  n. 
hand-writing  of,  when  proved,  466,  473. 
whether  proof  of  identity  of  parties  also  necessary,  475. 
interested  before  execution  of  deed,  476. 

after  execution  of  deed,  473,  466. 

ATTORNEY.     And  sec  tit.   Counsel. 

proof  of  being  by  book  from  master's  office,  414. 

admission  of  party  being,  227. 

adnaission  by,  when  evidence  against  his  client,  105. 

of  the  execution  of  an  instrument,  evidence  of  ita  exe- 
cution, 466. 
for   purpose   of    dispensing   with    proof,     evidence, 

105, 
made  in  course  of  conversation  not   for  such  purpose, 
not  admissible,  105. 
propositions   made    by,   respecting   a     demand,    are    evidence, 
106. 

not  to  be  proved  by  attorney,  106. 
when  sufficient  proof  of  being  attorney  of  party,  106. 
confidential  commtmicaiion  not  admissible,  140. 
not  compellable  to  produce  deed  deposited   with    him,  in  actions 

between  third  parties,  141. 
nor   will   copy  of  such   deed,  furnished    by  hini,  be   admitted, 

141. 
note,  supposed  to   be  forged,  received  from  client,  not  to  be  pro- 
duced in  evidence,  142. 
what  facts  he  may  be  examined  to,  145. 

may  be  examined  as  to  opinions  given  on  matters  of  fact,  147. 
privilege  of,  extent  of  rule,  143,  144,  145. 
the  privilege  is  that  of  the  client,  141. 
waiver  of  privilege  of,  by  client,  141. 

bill  delivered,     not    conclusive     against    additional    item, 
108. 

ATTORNEY,  LETTER  OF, 

deed  executed  under  power  of  attorney — power  must  be  produc- 
ed, 104. 

secondary  evidence  of,  452. 
by  corporation,  to  deliver  a  deed,  468. 


INDEX  TO  VOL.  I. 

AUCTIONEER, 

paper  delivered  by,  when  requiring  stamp,  225. 

declarations    by,    not    admissible    to    vary   conditions   of   sale, 
560. 

AUDITOR'S  BOOK,  415. 
AUTHORITY, 

general  authority  to  agent,  104. 

to  sign  bills  of  exchange,  104. 

to  subscribe  policies,  104,  105. 
deed  executed  under  power  of  attorney,  104. 
AVERMENT.     See  Variance. 

what  immaterial,  205. 

immaterial  need  not  be  proved,  205. 

where  it  may  be  struck  out,  206,  207. 

in  indictment,  when  to  be  proved,  207. 

matter  of  inducement  need  not  be  strictly  proved,  206. 


591 


AWARD, 


evidence,  when,  and  when  conclusive,  380. 
between  what  parties,  380. 

not   evidence   as   to   matters  not    inquired   into,    334, 
331. 
under  act  of  parliament  how  proved,  400. 

on  plea  of  wo  such  award,  matter,  dehors  the  deed,  is  not  admis- 
sible, to  vacate  the  award,  170. 
proof  of  submission  and  execution  of  award,  399. 
proof  of  submission  cf  ail  parties,  400. 


B. 


BAIL 


BAILIFF, 


BANK-BOOK, 


not  competent  witness  for  principal,  136. 
how  made  witness,  136. 

proof  of  being,  105. 

proof  of  his  acting  under  authority  of  sheriff,  106. 
not  competent  in  action  against  sheriff,  to  prove  his  own  endeav- 
our to  arrest,  59. 


evidence  to  prove  transfer  of  stock,  414. 

BANKRUPT.     See  tit.  Assignees,  Commissioners. 

attending     before    commissioners,    when     protected     from   ar- 
rest, 5. 

BANKRUPTCY.     See  tit.  Assignee. 

proof  of,  by  admission,  299,  228,  9. 
notice  of,  in  Gazette,  408. 
B.\RGAIN  AND  SALE, 

enrolment  of,  461, 

indorsement  of,  evidence,  387. 


592  INDEX  TO  VOL.  I. 

BARGAIN  AND  SXLT.— continued. 

endorsement  of  date  of,  387,  1C4,  n. 
of  freehold  interest,  46S. 

copy  of  enrolment  of,  463. 
of  ch.nttcl  interest,  462,  464. 

copy  of  enrollment  of,  461,  464. 
execution  of,  proof  of,  464. 

BARON  AND  FEME.     See  tit.  Husband  and  Wife. 

BARON  (Court.)     See  tit.  Manor  Court. 

Judgment  of,    proof  of,  396. 
proceedings  in,  ns  between  whom,  417, 
rolls  of,  417. 

ancient  writings  to  prove  custom,  417, 

though  not  signed  by  a  tenant,  417 

inspection  of,  429,  430. 

proof  of,  424. 

BARRATRY, 

conviction  of,  cause  of  incompetency,  28. 

BASTARDY, 

appeal  against  order  of,  86. 

rated  inhabitant,  competent  witness,  123. 
married  woman  may  prove  the  crim.  con.,  87. 

cannot  prove  want  of  access,  87,  241. 
whether   a    man    is   compellable    to   acknowledge  himself   the 

father.  276. 
child  born  after  divorce  a  mcnsa  el  thoro,  presumed  to  be  iilegit- 
mate,  when,  159,  197. 

presumption  of  legitimacy,  158. 
declarations   of    husband    or   wife    as   to   legitimacy   of  child, 
241. 

of  husband  as  to  legitimacy  of  wife,  239. 
BATTERY.     See  tit.  Assault  and  Trespass. 
BENEFIT.    See  tit.    Interest  and  witness. 

direct,  disqualifies  a  witness,  59. 
contingent,  will  not  disqualify,  47. 

BENEFIT  OF  CLERGY. 

effect  of,  in  restoring  competency,  32. 

proof  of    taking,  32. 

who  entitled  to,  without  burning  in  the  hand,  34. 


BIGAMY, 


prosecution  for, 

first  wife  not  competent  to  prove  marriage,  84. 
consent  of  parents  must  be  proved,  199. 
registration  of  marriage  need  not  be  proved,  410. 
sentence  of  divorce  or  of  nullity  of  marriage  is  a  bar  to, 

346. 
but  sentence  of  jactitation  is  not  a  bar  to,  343. 


INDEX  TO  VOL.  I.  593 

BIGAMY — continued. 

second     wife     competent     witness,     after   proof   of     first     marriage, 
S4. 
exception  in  the  stat.  of,  197,  n. 

where  eithef  party   beyond  sea  for  seven  years,    197,  n. 
in  case  of  divorce,  345. 

BILL  IN  CHANCERY, 

when  evidence,  and  of  what,  358. 
not  evidence  of  pedigree,  359. 

situation  of  parties  to  be  proved  by  extrinsic  evidence,  359. 
proof  of,  392. 
BILL  OF  EXCEPTIONS, 

what  and  by  whom  to  be  had,  311. 
time  of  tendering,  312. 
on  trial  at  bar,  or  at  nisiprius,  311. 
not  allowed  on  trial  of  feigned  is&ue,  312. 
not  in  criminal  cases,  311. 
not  at  quarter  sessions,  312. 
lies  only  where  writ  of  error  lies,  312. 
when  waived  by  bringing  writ  of  error,  313. 
BILL  OF  EXCHANGE, 

alteration   of,  when  it    makes     a   new  stamp    necessary,    511,   512,    513, 

516. 
parol  evidence  not  admissible  to  vary,  555. 
payee  and  endorser,  competent   to  prove  bill,  purporting  to   be  drawn   here, 

drawn  abroad,  43. 
co-partner  competent  to  prove  that  the  partner  who  drew  the  bill  had  no  au- 
thority, 67. 
BILL  OF  LADING, 

evidence  of  property  in  consignee,  when,  256. 
BILL  OF  PARTICULARS.     See  Particular,  Promissory  J^Tote,  Interest. 
BILL  OF  SALE  OF  SHIP, 

alteration  in,  its  effect  as  to  stamp,  517. 
BIRTH, 

time  of,  proved  by  declaration  of  deceased  parent,  240. 

by  the  declaration  of  surgeon    who   attended,    240, 
256. 
place  of,  cannot  be  so  proved,  241. 
BISHOP'S  REGISTER. 

blank  in,  supplied  by  parol,  540. 

BLANK, 

not  necessary    to   prove   filling  up,  at   the   time   of   execution, 

466. 
parol  evidence  to  suppl/",  when,  540. 
supplied  in  a  presentation,  540. 
BONA  NOTABILIA.     See  tit.  Administration,  Probate. 

Vol.  I.  75 


594 


INDEX  TO  VOL.  I. 

BOND      See  Debt,  Deed,  J\'on  est  factum,  ^-c. 

proof  of  execution  of,  by  subsciibing  witness,  476. 
proof  of  identity  of  party,  wiiether  necessary,  475. 
execution  of,    according  to   the  custom  of  a  foreign   country,  may     be 

proved,  467. 
obligee  cannot  compel  production  of  copy  of,  43S. 
condition  in,  not  varied  by  parol,  54S. 

BOND  SECURITY, 

for  administrator,  competent,  when,  52. 

BOOK  OF  ACTS,  398. 


BOOK, 


private, 

of  rector  deceased,  when  evidence,  "^60. 
of  corporation,  when  evidence,  422. 

custody  of,  422. 
of  tradesf'ian,  when  evidence  of  delivery  of  goods,  263. 
of  agents,  438. 
notice  to  produce,  439. 
time  for  calliug  for,  under  notice,  441. 
rule  for  production,  441. 
public, 

Domesday-book,  403. 

filazer's  hook.  390. 

day-book  of  christenings,  416. 

when  evidence  to  contradict  original  book,  416, 
of  Bank,  to  prove  transfer  of  stock,  414 
of  master's  office,  to  prove  being  attorney,  414. 
of  navy  office,  to  prove  death  of  a  sailor,  413. 
of  auditor's  office,  as  to  leases,  415. 
officer  who  made  the  entries  need  not  be  called,  260. 
of  parish,  for  copies  of  rates,  413. 

for  recording  indentures,  413. 
register  to  prove  marriage,  &c.  408. 
vestry-book  made  by  churchwardens,  414. 

to  prove  election  to  parish  office,  414. 
to  prove  right  to  a  pew,  414. 
of  impropriator,  when  evidence,  260. 
legcr-book  of  ecclesiastical  court,  398. 
herald's  books,  421. 

of  prison,  to  prove  time  of  commitment,  414. 
or  of  discharge,  414. 
not  to  prove  the  cause,  414. 
authenticity  of,  416. 
log-book  of  ship  to  prove  time  of  sailing,  414. 
poll-book  at  election,  4! 5. 
Lloyd's  books,  evidence  of  capture,  414. 
not  evidence  of  notice,  4I.'J 


INDEX  TO  VOL.  I.  595 

BOOK — continued. 

official   paper  at    the  custom-house,  containing  an    account  of 

ship's  cargo,  415. 

office  booli  of  secretary  of  bankrupts,  415. 

transcribed  by  officers  of  excise,  415. 

from  office  of  clerk   of    peace,    containing  enrol  nents  of    depu- 
tations, 4IG. 

of  Fleet  marriages,  410. 

of  foreign  chapel,  411. 

of  baptisms  in  Guernsey,  411. 

inspection  of  public  book,  428,  et  seq. 

when  not  compoUed,  432. 

mode  of  olitaining,  433,  444. 

proof  of  entry  in,  by  examined  copy,  226. 

day-book  of  prison,  when  evidence,  414. 
BORROWER, 

of  money,  competent  to  prove  usury,  51. 
BOUNDARY, 

hearsay  evidence  of, 

hearsay  of  parishioners,  evidence,  250. 

perambulations  of,  evidence,  249. 

on  questions  of  district  boundary,  inhabitants  not   incompetent,  from 

being  rated,  128. 
survey  as  to,  254. 
BRANDING, 

in  the  hand  for  felony,  32. 

benefit  of  clergy  without,  when,  33. 

competency  of  witness  restored  by  it,  32. 

proof  of  the  branding,  32. 

other  punishment,  in  lieu  of,  33. 

transportation,  33. 

fine,  23. 

whipping,'33. 
BREACHES, 

of  duty,  burthen  of  proof,  on  whom  thrown,  195. 
BRIBERY, 

at  election,  information  on  statute  against,  41. 

party  bribed,  a  competent  witness,  when,  41. 

unstamped  note  given  for  bribe,  evidence,  518. 
of  witness,  not  to  give  evidence,  28. 


BRIDGE, 


prosecution  for  not  repairing,  170. 

proof  of  repairs  by  private  persons,  when  admissible,  170. 
inhabitants  of  county,  town,  &c.    are   competent,  on  an  indictment 
against  a  private  person  or  a  corporate  body,  126. 
BROKER.     See  tit  Agent. 

of  policy,  competent,  though  also  underwriter,  47. 


696 


INDEX  TO  VUL.   1 

BROKER— coidinued. 

not  competent,  in  action  against  principiil,  to  disprove  liin  own  negli- 
gence, 56. 
BULL  OF  POPE, 

when  evidence,  421. 
BURGESSES, 

admission  of,  when  requiring  several  stamps,  509. 
BURGLARY, 

indictment  for  burglary  and  for  larceny, 

if  no   burglary  is   proved   at  the  time  of  the  supposed    burglary, 
evidence  of  a  larceny  on  a  former  day  is  not  admissible,  178. 
charge  of,  in  house  of  J-  D.  with  intent  to  steal  goods  of  J.  W. ,  proof 

that  the  goods  belonged  to  J.  D.  is  a  variance,  207. 
prisoner  may  be   acquitted   of  the   burglary,  and  found  guilty  of  the 
larceny,  203. 
BURNING  IN  THE  HAND.     See  Branding. 

BURTHEN  OF  PROOF, 

on  negative  averments,  195. 

on  charge  of  breach  of  duty,  195. 

on  fact  peculiarly  within  the  knowledge  of  the  party,  198. 


CAMDEN, 

history  of,  whether  evidence  of  a  private  custom,  423. 
CAPTAIN, 

of  a  ship,  competent  to  speak  to  destination  of  ship,  49. 

not  competent  as  to  deviation,  49. 
when  competent,  66. 
CAPTION, 

a  neces33ry  part  of  record,  31. 
CARRIER 

may  prove  amount   of  money  delivered    to  his   servant,  on    statute  of 
hue  and  cry,  70. 

witness  to  prove  delivery  of  goods,  129. 

effect  of  payment  of  money  into  court,  in  action  against,  189. 

receipt  of  goods  by  stamp,  525. 
CASHIER, 

of  bank  of  England,  competent  to  prove  forgery  of  bank  note,  122. 
CERTIFICATE. 

allowance  of,  entered  in  official  books  of  secretary  of  bankrupts,  416. 
of  conviction,  381. 

commissioners,  397- 
discharge  of  insolvent,  382. 
enrolment  of  fine,  382. 


INDEX  TO  VOL  I.  597 


CERTIFICATE— co;j/t7i«eci. 

of  justices,  as  to  repair  of  road,  882. 
the  king,  under  sign  manual,  381. 
letters  of  administration,  398. 
minister  abroad,  as  to  marriage,  SS2. 
ordinary,  as  to  legality  of  marriage,  S-12. 
parish,  signed   by  three  officers,  sealed  by  two,  471. 
of  settlement,  execution  of,  471. 

proper  custody  of,  483. 
protest  on  bill  of  exchange,  382. 
secretary  of  war,  382, 
vice-consul  abroad,  381. 


writ  of,  for  removing  a  record,  384. 


CERTIORARI, 

CHALLENGE, 

of  juror,  on  account  of  kindred,  17. 
CHANCERY.     See  tit.  Answer,  Bill,  Depositions. 

decree,  evidence  against  whom,  and  of  what,  838. 
proof  of,  358. 
previous  proceedings,  when  to  be  proved,  393. 
of  ancient  decrees,  393. 
bill,  when  evidence,  and  of  what,  858. 
not  evidence  of  pedigree,  359 
Proof  of,  392. 


CHARACTER, 


infamy  of,  when  incapacitates  a  witness,  27. 

of  party  to  suit,  examinable  only  when  put  in  issue,  176. 

in  an  action  to  set  aside  a  will,  for  fraud  committed  by  defend- 
ant, evidence  of  his  good  character  not  admissible,  176- 
nor  in  an  information  for  keeping  false  weights,  176. 
on  trial  for  rape,  of  prosecutrix's  character,  how  far  inquirable 

into,  176. 
on  trial  for  assault  with  intent  to  commit  a  rape,  how  far,  176. 

of  witness,  how  impeached  by  general  evidence,  291. 
not  by  proof  of  particular  acts,  291. 
not  by  the  party  producing  him,  309. 
how  supported,  if  attacked,  291,  n. 
of  deceased  witness  to  a  will,  if  impeached,  may  be  supported 

by  general  evidence,  308. 
of  prisoner,  177. 
general,  177. 

with  reference  to  nature  of  charge,  177. 
in  trial  for  high  treason,  177,  178. 

how  far  the  conduct  of  prisoner,  on  former  occasions,  is  ex- 
aminable.  177. 
acts  and  declarations  of,  when  evidence  for  him,  177. 


598  INDEX  TO  VOL.  I. 

CHARTER, 

explained  by  usage,  wlien,  540. 
presumed  from  IcDgth  of  possession,  161. 

CflARTER-rARTY, 

not  to  be  contradicted  or  varied  by  parol  evidence,  655 

CHARTULARY, 

aneient,  as  evidenco  of  endowment,  459. 
transcript  in,  when  evidence,  460. 
from  what  possession  it  must  come,  479. 

CHEAT, 

in  prosecution  for,  the  party  cheated  is  competent,  50 

CHH^DREN, 

when  competent  witnesses,  19. 

their  account  without  oath,  not  admissible,  20. 

confirmatory  evidence,  20. 

trial  put  off,  in  order  to  teach  the  nature  of  an  oath,  19. 

CHIROGRAPH, 

of  fine,  evidence  of  the  fine,  387. 

CHRONICLE, 

when  evidence,  423. 
of  speed,  when  evidence,  423. 
CIRCUMSTANTIAL  EVIDENCE.     See  Presumptive  Evidence- 
\  nature  of,  155. 

compared  with   direct,  67. 
when  to  be  received,  156. 

CIVIL  LAW, 

grounds  of  incompetency  by  tliat  law,  147,  n. 
rules  respecting  credibility,  148 

CLERGY, 

benefit  of,  abolished,  34. 

proof  of,  32. 
CLERGYMAN.     Bee  Parson. 
CLERK  OF  THE  PEACE, 

enrolment  of  deputations  by,   2IG. 

discharge  of  insolvent,  recorded  by,  219,  382. 

CO-CONSPIRATOR, 

acts  and  declarations  by,  when  evidence  against  others,  94, 

95,  97. 
declarations  not  connected  with  general  plan,  97. 

CO-DEFENDANT.     See  Defendant. 

in  general  incompetent  for  another  defendant,  73,  74. 
competent,  when  and  when  not,  73,  74. 
pleading  bankruptcy,  incompetent,  74. 

after  suffering  judgment  by  default,  when,  74. 

after  nolle  prosequi  entered,  74. 

on  joint  indictment  against  several,  74. 

in  action  on  joint  contract,  74. 

in  trover,  75. 


INDEX  TO  VOL.  I.  599 

CO-DEFENDANT— coji/f/JMeJ. 

in  trespass,  73,  75. 
in  ejectment,  76. 
when  verdict  of  acquittal    taken  for,  before  opening  case  as  to   the 

rest,  74. 
in    prosecution    for    Q?sault,    after   submitting    and   paying    fine, 
74. 
made  defendant  by  inistalie,  to  be  tai<en  off  record,  76. 
when   arbitrarily    joined,    &c.    und    noihing    proved    against    him, 

73. 
answer  of,  to  bill,  not  evidence  against  other  defendants,  362 

COGNOVIT 

need  not  be  stamped,  526. 

otherwise,  if  it  contain  an  agreement,  526. 

COLLECTOR 

of  taxes,  how  proved  to  be  such,  226. 
of  tolls,  227. 

COLLEGE, 

sentence  of  expulsion  by,  when  conclusive,  857 

COLONIAL  COURT,     • 

seal  of,  how  proved,  899. 

COLONIAL  LAWS, 

proof  of,  402. 

COMMERCIAL  REGULATIONS, 

of  foreign  state,  how  proved,  402. 

COMMISSION 

of  bankrupt  proving  under,  does  not  admit  its  valididy,  107. 
public,  404,  406. 

for  inquisitions,  374,  375. 

proof  of,  392. 
in  the  army,  not  proved  by  Gazette,  408. 

COMMISSIONERS 

of  bankrupt.     See  tit.  Assignee,  Bankrupt. 
may  compel  witnesses  to  attend,  when,  13. 
may  examine  bankrupt's  wife,  80. 

witness  attending  before,  protected  from  arrest,  when,  5. 
prisoner,  how  brought  before,  as  witness,  6. 
by  act  of  parliament, 

sentence  of,  when  conclusive,  356. 
of  excise, 

condemnation  by,  conclusive  of  right  of  seizure,  355. 
depositions   before,    in   presence  of  the  other  party,  and    signed 
♦  by  witness,  evidence  after  the  witness's  death,  378. 

of  inclosure,  ^ 

may  summon  witnesses,  when,  14, 


600  INDEX  TO  VOL.  I. 

COMMISSIONERS— co«/Jnued. 

under  seal  of  the  Court  of  Exchequer,  375. 
under  order  of  House  of  Commons,  875. 

COMMITMENT 

of  prisoner,  proved  by  prison-book,  414. 
of  witness  by  coroner  or  justice,  8. 

in  case  of  his  refusing  to  be  bound  over,  &c.,  8. 

COMMITTITUR, 

not  supplied  by  proof  of  day-book  of  prison,  414. 
COMMON.     See  tit.  Custom. 
by  custom, 

other  commoners  incompetent,  if  custom  the  same,  57. 

action  for  disturbance  of,  extent  of  right,  211. 

ancient  writings,  evidence  of  right  of,  418. 

proof  of  by  hearsay,  249,  252. 

old  rent-rolls  and  counterparts  of  leases  evidence,  253. 

though  possession   cannot  bespoken     to  under   them, 
253. 
depositions  when  evidence,  364. 
verdict  betv^'een  other  parties  evidence,  328. 
hearsay  of  parishioners  admissible,  25fl. 
by  prescription, 

not  proved  by  hearsay,  251. 

averment  of  levancy  and  couchancy,  proof  of,  211. 

hearsay,    evidence   of  a  prescriptive  right,   abridging  a   general 

right,  252. 
though  general  right  not  set  out  on  the  record,  252. 
others  claiming  under,  competent,  58. 
proof  of  right  of  common  for  sheep  and  cows,  will  support  a  claim  for 
sheep  only,  211. 

COMMONER, 

claiming  under  the  same    custom,  not  competent,  57. 
competent,  as  to  prescriptive  right  of  common,  when,  68. 

COMMON  RECOVERY, 

proved  by  deed  to  make  a  tenant  to  the  writ  of  entry,  when,  392. 
COMPARISON, 

of  hand-writing,  490. 

in  case  of  ancient  writings,  491. 

COMPENSATION, 

to  witnesses  in  civil  cases,  6. 

for  "expenses,  6. 

for  Joss  of  time,  7. 
to  witaesses  in  criminal  cases,  9,  12. 

COMPETENCY.    See  tit.    Witness. 

difference  between,  and  credibility,  17,  18,  27.  • 

how  restored,  31. 


INDEX  TO  VOL.  I.  gQl 

COMPOSITION, 

deed,  when  requiring  several  stamps,  508. 

real,  for  tithes,  not  presumed  from  usage  alone,  163. 

for  tithes,  proved  hy  admission,  229. 

COMPROMISE, 

offer  of,  when  an  admission,  108,  109. 

offer  to  pay,  under  compromise,   not  evidence   as  an  admission  of  a 

debt,  108. 
admission  o.*"  acceptance,  or   signature,   by  a  party,    evidence  against 

him,  though  made  during  a  treaty,  109. 

CONDEMNATION, 

sentence  of,  in.  Rem,  in  Exchequer,  its  effect,  354. 
i.'i  personam,  354. 
for  adulterating  spirits,  354. 
by  commissioners  of  excise,  355. 
in  court  of  admiralty,  346. 
sentence  of  foreign  courts  of  admiralty,  conclusive  evidence,  347. 

conclusive  of  what,  348. 
of  goods  on  one  statute,  not  evidence  as  to  offence  on  another  statute, 

355. 
when  not  conclusive,  349. 
when  not  admissible,  349. 
sentence  of  other  foreign  courts,  349. 
when  conclusive,  350. 

CONDITION, 

in  deed, 

parol  evidence  not  admissible  to  vary,  548. 
of  sale, 

not  varied  by  declarations  of  auctioneer,  560. 

CONFESSION 

of  prisoner  evidence  against  him,  110. 

voluntary  confession.  111. 

in  consequence  of  stranger  interposing.  111. 

under  mistake.  111. 

after  caution  by  magistrate,  112. 

to  constable,  112. 

upon  examination  by  justice,  115. 

not  evidence  against  others,  115. 

bad  practice  in  the  earlier  state  trials,  115,  n. 

to  be  taken  altogether,  116. 

subscription  of  by  prisoner,  114. 

by  magistrate,  115. 
what  confessions  not  considered  voluntary,  111. 
under  threat  or  promise,  not  evidence.  111. 

any   subsequent   confession  under   the  influence  of  such  former 
admission  is  not  evidence,  112. 

but  discovery,  in  consequence  of,  may  be  shown,  116. 

Vol.  I.  76  . 


602  INDEX  TO  VOL.  1. 

CONFESSION— coiiiinued. 

regularly  to  be  taken  in  writing,  113. 

in  the  words  of  the  person  as  nearly  as  may  be,  113. 
parol  evidence  of,  when  admissible,   113. 
examination  of  prisoner  on  oath,  not  admissible,  113. 

if  it  purport    to  be   on   oath,  it  cannot  be   shown   to   have  been 
without  oath,  113. 
statement  of  defend:int,  before  a  committee  of  the  House  of  Commons, 

evidence  against  him.  111,  n. 
confession  in  high  treason,   117. 

proved  by  two  witnesses,  sufficient  to  convict,  117. 
confirmatory  evidence,  when  proved  by  single  witness,  118. 
evidence  of  collateral  diets,  118. 

sufficient  to  convict,  if  proved  by  a  single  witness,  when  the  overt 
act  is  a  direct  attempt  against  the  life  of  the  king,  118. 
on  death-bed,  235. 

of  witness  to  a  will,  evidence  against  the  will,  236. 
proof  of  confession,  119. 

CONFIDENTIAL  COMMUNICATION.     See  also  tit.  Attorney. 

between  counsel  or  attorney  and  client,  privileged,  140. 

deed     deposited    with    attorney,    not    to     be     produced   by    him^ 

141. 
interpreter,   or   agent,  between  attorney    and  client,  cannot   reveal, 

144. 
communications     between      friend     and     friend,     not      privileged, 

144. 
to  medical  persons,  not  privileged,  144. 
oath  of  office  as  to  secrecy,  how  understood,  145. 
official  communications  privileged,  284. 

CONFIRMATION, 

of  child's  testimony,  20. 
of  accomplice,  41. 
rule  as  to,  41,  42. 

CONFIRMATORY  EVIDENCE, 

in  corroboration  of  witness  impeached,  306,  307. 


CONSENT, 


on  indictment  for   coursing  deer  "  without  consent  of  owner,''''    proof 
as  to  want  of  consent,  196. 


CONSIDERATION, 
in  deed, 

cannot  be  contradicted  by  parol,  549. 
another  may  be  proved,  549. 

though  no  consideration  stated,  549. 
where  divers  considerations  stated,  549. 
different  consideration  may  be  shown    in   case   of  fraud,    &c , 
551. 


INDEX  TO  VOL.  I. 

CONSIDERATION— co«<t/2u<?(i. 

fraud  in  deed  not  to  be  shown  by  party  to  the  deed,  552. 
of  promissory  note, 

letter  by  payee  to  ni.iker,  when  evidence  as  to  the  considera- 
tion, 232. 


603 


CONSPIRACY, 


CONSTABLE, 


CONSTAT, 


CONTEMPT, 


CONTRACT. 


on  indictment   for,  wife  of  one   defendant    not  competent  for  the 

rest,  81. 
acts,  declarations,  letters,  papers,  &c.    by   co-conspirator,  when 

evidence  against  the  rest,  94,  95,  97. 
proof  of  other  acts  besides  those  laid  in  the  indictment,  vhen  ad- 
missible, ISO. 

whole  conduct  of  the  prisoner,  at  the  time  of  the  supposed 

conspiracy,  to  be  enquired  into,  ISL 
his  conduct  at  other  meetings,  which  have  not  been  inquired 

into  against  him,  cannot  be  shown  in  his  favor,  182. 
what    the    prisoner    said,  before    he  went    to  the  meeting  in 
question,  is  not  evidence  for  him,  182. 
in   unlawfully  assembling, — what   facts    material   to  bo  proved, 

what  immaterial,  180. 
conviction  of,  renders  incompetent,  when,  29. 

proof  of  acting,  evidence  of  appointment,  226. 

of  letters  patent,  when  evidence,  463. 

attachment  of  witness  for,  7. 

when  granted,  7. 
commitment  for,  in  refusing  to  be  bound  over,  &c.  8. 
See  tit.  Agreement  and  Statute  of  Frauds. 

of  marriage,  may  be  proved  by  unstamped  letters,  525. 
between  master  of  ship  and  seamen,  to  be  in  writing,  556. 

not  void,  though  not  in  writing,  556. 

if  in  writing,  not  to  be  varied  by  parol  evidence,  556. 

to  be  produced  by  the  master,  437. 
mercantile, 

when  requiring  several  stamps,  511. 

explained  by  usage,  when,  556. 
of  service  for  year,  wages  due  in   proportion  to  the  time  of  ser- 
vice, 558. 
dormant  partner,  wlien  competent  to  prove  contract,  49. 
variance  in  proof  of,  207. 

in  action  of  assumpsit,  when,  20S. 

in  action  of  tort,  208. 

how  much  of  contract  to  be  stated,  209. 
written,  not  to  be  varied  by  parol  evidence,  560. 


(504  INDEX  TO  VOL.  I. 

CONVICT, 


CONVICTION, 


CO-OBLIGOR, 


dying  declaration  of,  not  evidenco,  23G. 


certificate  of,  when  evidence,  381. 

copy  of,  when  to  be  given  to  tho  convicted  party,  42G. 

record  of,  in  personam,  354. 

in  rem,  354. 
on  game  laws,  198. 

party  informing  need  not  disprove  the  several  qualilicationa,  19J. 
by  magistrate, 

when  to  be  drawn  up,  427. 
returned  to  sessions,  427. 
on  information  of  injured  party,  not  evidence  in  action  brought  by 

same  party,  339. 
effect  of,  in  evidence,  338,  339. 
for  assault, 

record  of,  on  plea  of  guilty,  evidence  in  action  for  same  as- 
sault, 338. 
for  perjury,  339. 

far  bigamy,  evidence  against  legality  of  marriage,  in  a  civil    ac- 
tion, 338. 
for  not  repairing  a  road,  evidence  of  liability,  331. 
of  principal,  evidence  against  accessary,  when,  331. 
although  judgment  drawn  up  irregularly,  331,  n. 
in  criminal  cases,  whether  evidence  in  civil,  337. 
not  conclusive  as  to  time  of  committing  the  offence,  214. 
witness  incompetent  on  conviction,  when,  28. 
proof  of  judgment  necessary,  30. 
founded  on  proceedings  in  other  courts,  31. 


incompetency  of,  on  ground  of  interest,  62. 
when  competent,  67. 
competent  after  release,  476. 


CO-PLAINTIFF, 

witness  against  another,  72. 


COPY, 


of  record,  384. 

under  great  seal,  384. 
under  seal  of  court,  385. 
examined  copy,  386. 

proof  of,  386. 
office  copy,  387. 

in  same  cause  and  court,  equivalent  to  a  record,  387. 
authenticated  by  proper  officer,  387,  388. 
of  depositions,  not  evidence,  in  other  courts,  388. 
of  record  of  acquittal,  how  and  when  to  be  obtained,  426,  426. 


INDEX  TO  VOL.  I. 

COPY — continued. 

of  judgment,  by  clerk  of  treasury,  not  evidence,  888. 
of  bond,  obligee  not  entitled  to,  43S. 
examined  copy  of,  answer  in  Chancery,  361. 
of  deed  enrolled  by  clerk  of  peace,  3SS. 

of  deed,  or  other  writing,    not  evidence,    when    the  original  can   bo 
reduced,  218. 
of  memorial  of  registry  of  deed,  464,  n. 

of  assignment  of  judgment,  464,  n. 
(  f  annuity-deed,  464,  n. 
admission  of  secondary   evidence,    in   the   case  of  ancient    private 

writings,  457,  45S,  459. 
duplicate    original,     or   examined    copy,    when    admissible,    445" 
of  probate,  397. 
of  book  of  acts,  398. 

of  ledger-book  of  ecclesiastical  court,  398. 
of  parliamentary  surveys,  405. 
copy  taken  by  machine,  not  evidence,  446. 
of  writing  in  possession  of  opposite  party,  458,  459. 
of  entries  in  public  books,  424. 
rule  to  obtain  copies  of,  429. 

COPYHOLD, 

not  devisable,  within  the  statute  of  wills,  494,  n. 
devise  of,  good  as  a  declaration  of  uses,  494,  n. 

attestation  and  signature  not  necessary,  494,  n. 
unless  required  by  the  terms  of  surrender,  494,  n. 
surrender,  mistake  in,  shown  by  parol  evidence,  540. 
to  uses  of  will,  not  now  necessary,  494,  n. 

COPYHOLDER.     See  tit.  Copyhold,  Manor-Court. 
inspection  of  court  rolls  by,  429- 
paper  signed  by,  evidence  as  to  customs,  257. 
declarations  of,  against  interest,  257. 

COPYHOLDER'S  COURT, 

proceedings  in,  how  proved,  396. 
rolls  of,  evidence,  417. 

CORONER.     See  tit.  Depositions,    Inquisition. 
may  bind  over  witness  to  appear,  8. 

or  commit  him  if  he  refuse,  8. 
depositions  before,  371. 
inquest  of,  evidence  of  lunacy,  336. 

CORPORATION, 

parties  to  a  suit,  in  a   corporate  capacity,   whether   competent,    69,71 

execution  of  deed  by,  468. 

books  of,  evidence  between  the  members,  422. 

evidence  of  public  right,  422. 

not  evidence  against  strangers,  422. 


605 


606  INDEX  TO  VOL    I. 

CORPORATION— co;i<i;(ue(i. 


boolcs  of  entries  of  payment  of  tolls,  422. 
of  payment  of  tithes,  422. 
entry  in,  to  be  made  by  proper  olliccr,  422. 
proper  custody  of,  to  be  shown,  422. 
corporator  may  produce,  483. 
inspection  of,  430,  431. 

right  of  inspection,   confined    to  members  of  corporation,  431. 
penalty  for  refusing  inspection,  when,  430,  n. 
deed  of,  does  not  require  delivery,  468. 

aflixing   common    seal    to,   when    tantamount   to    a  delivery,    468. 
freemen  of,  how  rendered  competent,  136. 

incompetent,  when,  66- 
officer  of,  when  competent,  though  liable  to  information,  51. 
seal  of,  how  proved,  386. 


CORPORATOR, 


when  competent  witness,  51. 
admission  by,  91,  n. 


COSTS. 


person  liable  to,  not  competent,  59. 
co-defendant,  59. 
partner,  59. 

drawer  of  accommodation  bill,  61. 
co-obligor,  62. 
agent  to  discount  a  bill,  62. 

for  receiving  money,  62. 
Bherifi''s  officer  indemnifying,  incompetent,  69. 
prochein  amy  or  guardian,  59. 
party  to  the  suit,  59. 
bail  not  competent  for  principal,  59. 
governors  of  poor   house,  if  liable  to   costs   individually,  incompetent, 

69. 
competent  if  liable  only  in  a  corporate  capacity,  69. 
of  prosecution  when  allowed,  10. 

on  taxation  of,  expense   of  witness  from  abroad  allowed,  when,  7. 
expense  of  depositions  taken  abroad,  not  allowed,  15. 
compensation  for  loss  of  time,  7. 
proof  of,  by  postea  with  the  master's  allocatur,  389,  339,  n. 

CO-TRESPASSER, 

when  a  competent  witness,  41,  47,  68,  73,  75. 
admission  by,  when  evidence  against  the  rest,  93. 

not  competent  for  plaintiS',  after  judgment  by  default,  75. 
COUNSEL.     See  tit.  Attorney. 

professional  confidence  with  client,  140. 


INDEX  TO  VOL.  I.  607 

COVfiSEL— continued. 

confidential  communications  not  to,be  disclosed,  141. 
though  proceedings  finished,  141. 
not  in  actions  between  third  persons,  141. 
nor  on  cross-examination,  147. 
what  communications  privileged,  140,  145. 
third  person  hearing  the  communication,  may  prove  it,  145. 
communications'to  olher'persons  not  privileged,  144. 
admissions  by,  whether  evidence,  106. 
retainer,  book  of,  142. 
COUNTERFEIT  MONEY, 

prosecution  fisr  uttering, 

proof    of    uttering  fother    counterfeit    money    when    evidence, 
179. 
COUNTERPART, 

of  deed, 

evidence  againstjhe  party  signing,  and  his  assigns,  without  notice 

to  produce  the  original,  443. 
evidence  when  original  lost,  or  destroyed,  or  in  possession  of  oth- 
er party,  who  lias^h^d  notice^to  produce,  457. 
of  lease,  evidence  upon  right  of  common,  253. 

COUNTY, 

inhabitant   of,    competent   on   indictment   for    non-repair  of   bridge, 
126.  • 

COURT.     See  Admiralty,  Ecclesiastical  Court,  ^c 
of  exclusive  jurisdiction, 

judgment  of,  general  rule  as  to,  340. 
of  inferior  jurisdiction,  396,  427. 

proceedings  how  proved,  393, "39 6. 

party  has  a  right  to  a  copy,  427. 
martial,  may  summon  witnesses,  14. 

prisoner  brought  before,  as  witness,  how,  6. 

witness  attending  before,  privileged  from  arrest,  6. 

proceedings  before,  cannot  be  produced,  287. 

rule  of,  388. 

COURT-BARON, 

judgment  in,  how  proved,  396. 
entries  in  rolls  of,  when  evidence,  253,  417. 
of  customs,  descent,  &c.,  418. 

COURT  ROLLS, 

evidence  of  customary  descent,  417,  418. 
of  customary  tenure,  418. 
ofright  of  fishery,  253. 

COVENANT.     See  tit.  Deed. 

not  to  be  construed  by  the  party's  acts,  396. 

action  of,  against  tenant,  for  non-repair  of  premises,  plea  of  perrorm- 
ance,  admits  partof  deed  set  out,  171. 


608  INDEX  TO  VOL.  I. 

COYENAKT— continued. 

sub-lessee    of    tenant    niay  prove  good    management   of  farm, 

49. 
to  repair,  plaintilTto  prove  breach  of,  196. 

COVERTURE, 

on  plea  of,  if  it  appear  that  the  husband  went  abroad  above  sev- 
en years  before  the  commencement  of  the  suit,  defendant 
ought  to  prove  him  alive  within  that  time,  198. 

CREDIBILITY, 

diflerence  between  it  and  competency,  17,  18. 

CREDIT, 

of  witness,  how  impeached,  291. 

by  proof  of  general  character,  291. 
not  b}'  proof  of  particular  acts,  291. 
by  proof  of  contradictory  statements,  293. 

rules   as    to  cross-examination   preparatory  to 
such  proof,  293,  296. 
party  not  to  discredit  his  own  witness,  308,  309. 

meaning  of  the  rule,  309. 
how  supported,  306. 

CRIMEN  FALSI, 

conviction  of,  incapacitates  a  witness,  28. 
CRIMES, 

what  incapacitates  a  witness,  28. 
CRIMINAL  CONVERSATION, 

action  for, 

letters  of  husband  and  wife,  when  admissible,  82. 

CROSS-EXAMINATION.     See  Witness,  Examination.  ^ 

as  to. interest,  267. 

as  to  verbal  statements  of  witness  on  other  occasions,  293. 
as  to  written  contradictory  statements,  296. 
as  to  collateral  facts,  272,  291. 
as  to  contents  of  letter,  "^96. 
as  to  contents  of  lost  letter,  298. 

what  questions  irrellevant,  273. 

such   questions,  if  answered,  not   to   be   contradicted,  272, 
291. 
person  merely  producing  a  deed,  need  not  be  sworn,  273. 

not  to  be  cross-examined,  unless  sworn,  273. 

if  sworn,  he  is  witness  for  the  other  side,  273. 
justice,  producing   an  information,  not  subject   to  cross-examina- 
tion, unless  sworn,  274. 
leading     questions     on    cross-examination,    how    far    allowed, 

275. 
questions,  reflecting  on  the  character,  278. 

witness  not  compellable  to  answer,  280. 

but  may  be  properly  asked,  282. 


INDEX  TO  VOL.  I.  609 

CROSS  EXAMINATION— conhnweJ. 

counsel  cross-examining   may    look    memorandum   used  by    witness, 

290. 
power  of  cross-examining  ns  to  contradictory   Btatementa,  generally, 

or  as  to  represeHtalions  in  writing,  299. 
mode  of  re-examining  a  witness,  after  such  crosa-examination,  304. 

CUSTODY, 

of  old  documents,  259,  479. 

of  appointment  of  overseer,  454. 

of  vicar's  books,  260,  n.  (3.) 

CUSTOM. 

of  manor,  173. 

proof    of   custom   in   one    manor,    not  evidence   of   custom    in 
another  manor,  173. 
of  the  country,  proof  of,  174. 
as  to  time  of  quitting  farm,  in  case  of  lease  under  seal,  554. 

in  case  of  parol  lease,  554. 
national,  proof  of,  423. 

witness,  claiming  under  the  sarao  custom,  incompetent,  58. 
customary  right,  not  expressed  in  lease,  553. 
to  a  heriot,  553. 
to  way-going  crop,  553. 
exercise  of,  when  to  be  shown,  249,  418. 
cannot  be  claimed,  if  inconsistent  with  lease,  554. 
proof  of,  by  hearsay,  249. 

hearsay  of  deceased  person,  though  he   claimed  under  the  same 

custom,  250. 
verdict,  though  between  other  parlies,  327. 

depositions,  not  evidence   against  stranger  to   former  suit,  where 
the  same  point  is  in  issue,  246. 

where   the  point   in   issue  is  not  the   same,   they  are  evi- 
dence, 246, 248. 
paper  signed  by  copyholders,  418. 
court-rolls  of  manor,  and  ancient  writings,  417. 
proof  of  custom,    in  other   parish  or  manor,  not   evidence,  173, 
176. 

otherwise,  on  a   question  of  tenure  in  one  of  several  con- 
nected manors,  173. 
variance  in  proof  of,  211. 
owner  of  property  not  competent  to  disprove  a  custom,  if  chargeable* 

58. 
entered  on  court-rolls,  evidence  of  descent,  418. 

CUSTOMARY  ESTATES, 

nature  of,  proved  by  entries  on  court-rolls,  418. 
descent  proved  by  entry  on  court-rolls,  418. 

Vol.  I.  77 


(JlO  INDEX  TO  VOL.  I. 

CUSTOM-HOUSE, 

official  papers  kept  there,  415. 

CUSTOM-HOUSE  OFFICER, 

acting  Q3  such,  evidence  of  appointment,  226. 
See  tit.  Excise. 

D. 

DAMAGES, 

former  verdict,  proof  of,  328,  332. 
date  of  acquittal,  214. 
of  judgment,  214. 
of  enrolment,  387,  464,  n. 
amount  of  damages,  recovered  in  an  action,  how  proved,  832. 
DAY, 

variance  in  proof  of  the  time  of  committing  an  oflencc,  214. 

DAY-BOOK, 

when  evidence  to  contradict  an  original  book,  416. 
of  prison,  when  evidence,  414. 

DEAF  AND  DUMB, 

how  to  give  evidence,  19. 
DEATH, 

abroad,  evidence  of,  197,  239. 

presumed  at  the  expiration  of  seven  years,  197. 

not  proved  by  letters  of  administration,  343. 

on  issue  as  to  the  death  of  a  particular  person,  the  party  asserting  the 

death  has  to  prove  it,  197. 
death- bed  declarations,  235.     See  tit.  Dying. 

DEBT.     See  tit.  Bond,  Deed,  JVil  debet,  JVon  est  factum. 

offer   to    pay,    under   compromise,    not    evidence  as   admission   of, 

108. 
action  of  against  witness  on  statute  of  Elizabeth,  7,  8. 
action  on  foreign  judgment,  352,  353. 

']ViAgmen\.  prima  facie  evidence,  352,  353. 
proof  of  judgment,  399. 


DEBTOR, 
DECEIT, 


discharge  of  insolvent,  how  proved,  219. 


action   for,  in  misrepresenting  a  person's   property,  the    person    may 
prove  himself  insolvent,  50. 
DECLARATION.     See  lit.  Admission,  Evidence,  Hearsay, 
post  litem  motam,  241 
part  of  res  gesta,  231. 

of  accomplice,  when  evidence  against  his  associates,  93,  94. 
against  interest,  255. 

that  certain  goods  are  not  witness's  property,  257. 
entries  of  principal,  when  evidence  against  surety,  258. 
proof  and  authenticity  of,  259. 
by  owner  of  estate,  256. 


INDEX  TO  VOL.  I.  g]  J 

DV:CL.\RATlOS— continued. 

by  owner  of  property,  257. 
by  copyliolder,  257. 
chargo  for  work  paid,  256. 
by  steward,  &c.  charging  liimself,  255. 
by  collector,  255. 
by  master  of  vessel,  256. 
not  evidence,  if  the  person  alive,  259. 
how  proved,  259. 

by  occupier  of  land,  as  to  extent  of  adjoining  tenant's  land,  258. 
of  husband  and  wife,  not  evidence  for  or  against  each  other,  81. 

as  to  marriage,  240. 
of  deceased  busb;ind,  as  to  legitimacy  of  wife,  239. 
of  wife,  when  evidence  against  husband,  85. 
of  deceased  parent,  to  prove  time  of  birth,  240. 
not  to  prove  place  cf  biilh,  241. 
not  to  prove  want  of  access,  241. 
of  deceased  surgeon,  as  to  time  of  birth,  24 J. 
of  relations  as  to  pedigree,  238. 

not  evidence,  if  made  by  persons  not  related,  240. 
or  if  the  relative  alive,  240. 
of  rated  inhabitant,  as  to  setllement,  72. 
on  death  bed,  235.     See  tit.  Dying  Declarations. 


DECREE, 


in  chancery,  evidence  against  whom,  and  of  what,  358. 
proof  of,  392. 

previous  proceedings,  when  to  be  proved,  392.  • 

in  case  of  ancient  decree,  393. 
when  used  to  prove  extrinsic  fact,  393. 
lost  decree,  respecting  tithes  in  London,  proof  of,  387. 
may  be  proved  by  other  evidence  than  copy,  387. 


DEED.     See  tit.  Writing,  Attesting,  Witness. 


action  upon.     See  tit    Covenant,  Debt. 

production  of,  448. 

pr^  of,  when  party  claims  under  instrument,  449. 

in  actions  between  landlord  and  tenant,  451. 

in  action  against  sheriff,  451. 
recital  in,  when  secondary  evidence,  457. 
ambiguity  in,  when  and  how  explained,  531. 

latent,  531. 

patent,  538. 
registry  of,  proof  of,  218,  388. 
execution  of,  in  foreign  country,  467. 

by  corporation,  468. 
ancient,  explained  by  usage,  when,  540. 


612  INDEX  TO  VOL.  I. 

DEED— continued. 


presumed  from  usage,  when,  161. 

proof  of,  when  produced  in  consequence  of  notice,  448. 

variance  in  proof  of,  211. 

loss  of,  how  proved,  460. 

copy  of  enrolment  of,  when  admissible,  461. 

recital  in,  evidence  against  whom,  457. 

execution  of, 

under  power  of  attorney,  power  to  be  shown,  104. 
proved  by  subscribing  witness,  464,  465. 
subscribing  witne.os  necessary,  though    deed  admitted, 
465. 
signing,  proof  of,  467. 

under  power  of  attorney,  power  to  be  produced,  466. 
sealing,  467. 

same  seal  used  by  several  parties,  467,  471. 
rule  as  to  sealing  by  several,  in  deed  under  power,  471. 
delivery,  proof  of,  467. 
whit  tantamount  to,  467. 
on  another  day,  may  be  shown,  553. 
by  corporation,  not  required,  468. 
subscribing  witness  may  prove  deed  forged,  41. 

cannot  be  objected  to,  as  interested,  by  one  who  asked 
him  to  attest,  knowing  his  situation,  476. 
subscribing  witness  not  producible,  execution  how  proved,  473. 
what  excuses  his  absence,  473. 
proof  of  his  handwriting,  473. 
identity  of  party,  475. 
party's  signature,  proof  of,  when  sufficient,  475. 
execution  need  not  be  proved,  when,  477. 
of  deed,  30  years  old,  477. 

custody  of,  to  be  shown,  when,  479. 
of  deed  produced  by  rule  of  court,  483. 
of  deed  pioduced  by  the  other  party,  when,  483. 
mistake  in,  when  rectified  in  equity,  576. 

how  proved,  577. 
parol  evidence,  not  admissible  to  vary  or  add  to,  548. 
except  in  case  of  fraud,  &c.  551. 
another  consideration  may  be  shown,  549. 
memorandum    of  payment,   endorsed   on   deed,  may  be  dis- 
proved, 549. 
averment  of  payment,  in  body  of  deed,  is  conclusive,  549. 
party  when  compellable  to  produce,  435. 
notice  to  party  to  produce,  439. 


INDEX  TO  VOL.  I.  G13 

DEED — continued. 

proof  of  deed  in  party's  possession,  440. 

possession  of  third 'persons,  440. 
deed  produced  under  notice,  bow  proved,  448. 
notice  when  not  necessary,  441. 
counterpart  of  deed,  evidence  against  party  signing,  427,  443. 

secondary    evidence   of  deed    when    admissible,    452,  456,    457. 
examined  copy  of  deed,  458. 
parol  evidence  of,  458. 

DEFAMATION, 

action  for, 

not  necessary    to  prove   the  whole   of  the   actionable  words,  201. 

admission  of  plaintilPs  qualification,  227,  228. 

when  recessary  to  prove  plaintiff's  qualification,  22S. 

DEFAULT, 

judgment  by, 

in  action  against   acceptor   of  a  bill,  admits  the   acceptance   and   suffi- 
ciency of  stamp,  and  that  the  bill  is  truly  set  out,  186. 
in  action  for  goods,  sold,   &c.  it   admits   the   sale,  and  something  due, 

only  disputing  the  amount,  187. 
after  judgment  by    default,  of  one  defendant,  the  plaintiflf  may  elect  to 

be  nonsuited  as  to  the  other  defendant,  186. 
co-defendant,  in   prosecution   for   misdemeanor,  not   competent  for  the 
other  defendants,  after  default,  74. 

in  action  on  joint  contract,  not  competent  for  other  defendant,  75" 

nor  competent  for  the  plaintiff,    75. 

in  trover,  competent  for  other  defendants,  75. 

in  trespass,  not  competent  for  plaintiff,  75. 

in  ejectment,  competent  for  plaintifi",  when,  76. 

DEFENDANT.     See  Co-defendant. 

admission  of,  93.     See  tit.  Admission. 

discharged  and  made  witness,  when,  73,  74. 

submitting  to  fine,  on  indictment  for  assault,  may  be  witness  for  another 

defendant,  74. 
suffering  judgment  by  default,  when  competent,  74. 

in  prosecution  for  misdemeanor,  74. 

in  action  on  joint  contract,  75. 

in  trover,  75. 

in  trespass,  75. 

in  ejectment,  76. 
if  one  defendant  pleads  bankruptcy,  and  the   others   plead    the  general 
issue,  he  cannot  give  evidence  for  the  rest,  74. 


INDEX  TO  VOL.  I. 

DEFENDANT— con/i««eJ. 

in  ejectment,  how  made  witness,  76. 

made  defendant  by  mistake — m:iy  be  struck  out,    76. 

in  an  itifortnation,  nolle  prosequi  entered,  74. 
answer   of  one  defendant   not   evidence  ngainst    anoliicr   generally, 
362. 

DELIVERY  OF  DEED, 

wh.it  amounts  to,  467,  368. 

DEMAND, 

particular  of,  under  judge's  order,  190. 
form  of,  and  effect,  190. 
confines  the  party,  when,  190. 
inaccuracy  in,  when  immaterial,  191. 
delivery  of,  193. 
proof  of,  193. 

DEMURRER  TO  EVIDENCE, 
what,  313. 

form  of  drawing  np,  315. 
assessment  of  damages  upon,  415. 
facts  admitted,  314. 

counsel  for  the  Crown  not  compellable  to  join,  314. 
not  allowed  in  the  King's  case,  314. 
under  the  control  of  the  court,  315. 

DEPOSITIONS.     See  tit.  Examinalions. 
on  interrogatories,  14,  395. 

examination,  how  taken,  14. 

by  consent  of  parties,  15. 

when  admitted  in  evidence,  866,  394. 

proof  of,  395. 

not  evidence  without  commission,  395, 

unless  of  ancient  standing,  395. 
to  perpetuate  testimony, 

evidence,  though  questions  leading,  365. 

or  witness  interested,  363. 

witness  becoming  interested  after  making,  364. 
not  evidence  for  or  against  a  stranger  in  general,  327,  364. 

on  question  of  pedigree,  when  admissible,  243. 

on  question  of  custom,  when,  246,  364. 
post  litem  motam,  rule  as  to,  241,  364. 

point    in    issue    not    the    same,    deposition     when     evidence, 
246. 

ancient  depositions  by  persons    in  a  certain  character,  it  must  be  pre- 
sumed they  were  such,  246. 
in  Chancery, 

evidence  between  whom,  and  when,  363. 
not  for  or  against  a  stranger,  364. 

in  question  of  pedigree,  not    evidence  against    a  stranger,  when 
the  same  point  is  in  issue,  243. 


INDEX  TO  VOL.   I.  .-i  - 

TiEVOSlTlONS— continued. 

evidence  of  customs,  tolls,  &c.,  when,  364. 

unless  made  post  litem  motam,  364. 

or  where  hearsay  admitted,  364. 
not  rejected,  because  on  leading  interrogatories,  365, 

or  because  witness  interested,  365. 
rule  as  to  admission  of,  after  dismissal  of  bill,  365. 
before  answer  put  in,  when  evidence,  365 
de  bene  esse,  not  evidence  before  answer  put  in,  365. 
order  for  reading  of,  on  trial  at  law,  363,  S95. 

when  made,  366. 

effect  of,  363,  366. 

proof  of  depositions,  338,  394,  396. 
when  bill  and  answer  lost,  395. 
proof  of  bill   and    answer,    when   necessary    to    roadin'^    of,    395. 

not  necessary,  when  defendant  in  contempt,  395. 
ancient  depositions,  395. 
in  Ecclesiastical  Courts,  when  admissible,  378. 

evidence  in  temporal  Courts,  878. 

between  what  parties,  378. 
in  what  causes,  378. 
before  commissioners  of  excise, 

evidence  on  appeal,  between  same  parties,  378. 
after  death  of  deponent,  379, 
before  commissioners  of  bankrupt, 

statutes  respecting,  13. 
before  coroner,  under  stat.  7  G.  4,  c.  64,  371. 

must  contain  the  effect  of  the  evidence,  371. 

to  be  certified  together  with  the  inquisition,  371. 

need  not  be  in  presence  of  prisoner,  372. 

evidence  on  trial  of  prisoner,  when,  372. 

proof  of,  399. 
before  magistrate,  under  stat.  7G.  4,  c  64,  367,  368, 

in  what  cases  evidence,  368. 

how  taken,  369, 

in  prisoner's  presence,  368. 

how  certified  and  transmitted,  371. 

taken  in  another  country,  371. 

need  not  be  signed  by  deponent,  370. 

deponent  must  be  sworn,  370. 

party  charged,  not  to  be  sworn,  370. 

evidence  against  prisoner,  when,  370. 

in  misdemeanors,  368,  370. 

in  civil  cases,  370. 

in  information  for  assault  and   robbery,  when  evidence  in  prose- 
cutions for  murder,  370. 

in  high  treason,  370. 


(516  INDEX  TO  VOL   I. 

DEPOSITIONS— conW/iwe^i. 

in  petty  treason,  not  sufficient  to  convict  of  the  treason,  but  will 
support  a  conviction  for  the  murder,  370. 

in  case  of  misdemeanor,  7  G.  4,  c.  64,  36S. 

to  be  signed  by  the  justice,  369. 

evidence  for  prisoner  to  contradict  witness,  871. 

prisoner  has  no  right  to  copy  of,  427. 

proof  of,  399. 
of  pauper,  as  to  settlement,  376. 
of  witness  abroad,  when  evidence,  14,  367. 
proof  of  party  being  abroad,  366. 
of  witness  in  India,  367. 

in  case  of  information  or  indictment,  867. 

on  cause  of  action  arising  in  India,  367. 

on  bill  for  divorce,  15. 

on  prosecution  of  persons  in  public  service,  15. 
proof  of  disposition,  388,  394,  396. 

when  admitted  under  order  of  chancery,  363,  395. 

office  copy,  not  evidence  in  other  courts,  388. 

copy  attested  by  judge's  clerk,  388. 

depositions    in  Chancery,    evidence   as  admissions,   or  to  contra- 
dict, without  proof  of  bill  and  answer,  395. 

DEPRIVATION, 

sentence  of,  by  college,  356. 

DEPUTATION, 

enrolment  of  in  office  of  clerk  of  peace,  416. 

DEVISEE, 

not  competent  to  prove  the  testator's  sanity,  65. 

nor  to  attest  a  will,  65. 
husband  of,  not  competent  to  prove  a  will,  496. 

DESCENT, 

course  of,  in  manor,  proved  by  a  customary,  413. 

by  ancient  writings  found  among  court-rolls,  417. 

DIRECTOR  OF  POOR, 

competency  of,  69. 

DISCHARGE, 

of  insolvent  debtor,  how  proved,  219. 
of  prisoner,  proved  by  prison  books,  416. 

DISFRANCHISEMENT, 

of  member  of  corporation,  136. 
judgment  of,  136. 

DISTURBANCE  OF  COMMON, 

extent  of  claim,  211. 

DIVORCE, 

child   born  after  divorce  a  mensa,  when   presumed  to  be  ilkgitimate, 
197. 

DORMANT  PARTNER,  49. 


INOEX  TO  VOL.  I  (517 

DOMESDAY  BOOK, 

account  of,  403. 
when  evidence,  403. 

DRAWER 

of  bill,  competency  of,  61. 

DUCES  TECUM, 

subpoena,  8.     See  tit.  subpana. 
production  of  writings  under,  3. 

DUGDALE, 

baronage  of,  not  evidence  to  prove  a  descent,  423. 

monasticon  of,  not  evidence  as  to  the  order  of  a  monastery,  423. 

DUPLICATE  ORIGINAL, 

taken  by  copying  machine,  not  evidence,  446. 
of  notice  to  produce,  notice  to  quit,  &c.,  445. 
of  attorney's  bill,  446. 
of  notice  cf  action,  446. 

DYING  DECLARATIONS, 

adnjjssible  in  prosecutions  for  murder,  235- 
principle  of  the  rule,  235. 
not  evidence  in  civil  cause,  236. 
not  in  other  prosecutions  for  robbery,  237. 
of  persons  mortally  wounded,  235. 
of  wife  against  husband,  in  case  of  murder,  84. 
consciousness  of  danger  to  be  proved,  235. 
whether  made  in  extremis,  a  question  .'^or  the  court,  235. 
evidence,   though  a   subsequent   statement  may  have   been   made  in 

writing,  237. 
of  criminal  at  time  of  execution,  not  evidence   against  an  accomplice, 

236. 
of  subscribing  witness  to  a  bond,   as  to    its   being   forged,   evidence, 
236. 


EASEMENT, 

grant  of,  presumed  from  twenty  years  enjoyment,  163. 
as  against  the  reversioner,  when,  1C6. 
presumed  from  shorter  enjoyment,  164. 

ECCLESIASTICAL  COURT.     See  Probate. 
suit  in, 

number  of  witnesses  to  prove  a  fact,  155. 
proof  of  temporal  matter  arising  incidentally,  155. 
depositions  in,  when  evidence,  378. 
sentence  of,  336. 

of  nullity,  or  in  affirmance  of  marriage,  conclusive  on  ques- 
tions of  legitimacy,  when,  836,  341,  342. 
when  conclusive  on  trial  for  polygamy,  345. 

Vol.  I.  7S 


618  INDEX  TO  VOL    I 

ECCLESIiWTICAL  COVRT— continued. 

in  a  cause  of  jactitation,  evidence  in  ejectment,  342. 
not  conclusive,  343. 

much  less,  in  criminal  prosecutions,  844. 
indictment  for  forgery,  345. 
bigamy,  345. 
evidence  between  what  parties,  342. 
when  conclusive  as  to  all,  342. 
impeachable  for  fraud,  341,  346. 

between  what  parties,  346. 
sentence  offer  fornication,  not  evidence,  836. 
on  validity  of  will,  and  right  of  administration,  conclusive,  34S. 
proof  of  sentence,  396. 

sentence  of  ecclesiastical  judge,  when  examinable,  357. 
seal  of,  ou  probate,  need  not  be  proved,  397. 

ECCLESIASTICAL  SURVEYS.     See  Survey. 


EJECTMENT, 


who  the  real  parties  in,  72. 

entry  of  rents  by  owner,  when  evidence,  256. 

not  evidence  for  party  claiming,  253. 
sentence  of  jactitation  evidence  in,  341. 
in  order   to   exclude  parol    evidence   of  a   tenancy,    it  is  not  enoagh 

to  prove  that  there  is  a  written  agreement,  &c.,  22L 
award,  when  conclusive  in,  380. 
witness  in,  competency  of,  63. 

plaintiff  having   agreed    to   grant   lease   to   witness,  in    case   of 
success  in  the  cause,  renders  witness  incompetent,  63. 
against  tenant  in  posse-ssion,  65. 

witness  called    by  defendant,   to  prove   himself  real    tenant  and 
defendant  to  be  his  bailiff',  incompetent,  65. 
tenant  in  possession  incompetent,  56. 
landlord   incompetent   to  prove   rent   due,  in   action   against  sheriff, 

56. 
heir  apparent  competent  to  prove  title  of  land,  65. 
co-defendant  after  judgment  by  default,  competent  to  prove  the  other 

in  possession,  76. 
co-defendant,  how  made  witness  for  the  other,  76. 
one  of  several  lessors,  not  compellable  to  give  evidence  for  defendant, 

72. 
trespass  for  mesne  profits,  ^ 

judgment  after  verdict, 

when  and   upon  what   points   conclusive,   330, 
336. 


INDEX  TO  VOL.  I.  6 1  ^ 

ELECTION, 

bribery  at,  information  for,  41. 

party  bribed,  competent  witness,  41. 
public  right  of,  proved  by  verdict  between  other  parlies,  321. 
poll  book,  evidence,  415. 
ELEGIT, 

proof  of  title  under,  890 

See  tit.  Ejectment  in  Vol.  II. 

ENDOWMENT, 

secondary  evidence  of,  460. 

of  a  vicarage,  when  presumed,  162. 

ENROLMENT, 

of  fine, 

certificate  of,  evidence  of  enrolment,  882 
of  duchy  lease,  388. 
if  deed,  when  evidence,  461. 

evidence  against  party  making  enrolment,  464. 
of  bargain  and  sale,  under  stat  27  H.  S,  c.  16,  387,  463. 

date  of,  part  of  the  record,  387,  464,  n. 
indorsement  of  enrolment  on  the  deed, 

proof  of  enrolment,  387. 
copy  of,  when  evidence,  461,  464. 
of  memoiial  of  annuity-deed,  copy  of,  464,  n. 

indorsement  of  date,  part  of  record,  387,  n. 
of  other  deeds,  when  evidence,  464,  n. 
copy  of  enrolment,  when  evidence,  464,  n. 
by  clerk  of  peace,  388. 


ENTRIES, 


EQUITY, 


in  public  books,  413,  414,  41.5,  422. 

proof  of,  226,  424- 
in  corporation  books,  422. 

proof  of,  424. 
in  private  documents, 
family  Bibles,  239 
by  deceased  steward,  255. 
receiver  of  rents,  255. 
deceased  copyholder,  257. 
collector  of  rates,  258. 
deceased  rector  or  vicar,  260. 
lessee  of  rectory,  261. 
death  of  parlies,  when  to  be  shown,  261 
situation  of,  when  to  be  shown,  259. 
proof  of  authenticity  of,  259. 
in  tradesman's  book,  263. 


general  rule  in  courts  of,  as  to  the  admissibility  of  parol  evidence,  566. 


620  INDEX  TO  VOL    I 

EdUIlT— CO.  'inued. 

with  respect  to  tho  party  charged,  56S. 
to  plaintiff  in  equity,  570. 
rule  of,  in  case  of  part  performance,  575. 
mistakes  in  deeds  corrected  by,  576. 
trusts  raised  in,  577. 

ESCHEAT, 

inquisition  of,  874. 

between  whom,  and  of  what,  evidence,  874. 

how  taUen  and  presented,  874. 

right  of  cross-examining  witnesses,  875. 

ESTOPPEL, 

by  judgment  or  verdict,  when,  322. 
between  the  same  parties,  323. 
examples  of,  323. 
privies,  bound  by,  324. 

EVICTION, 

may  be  proved,  under  nil  debet,  in  action  of  debt  for  rent,  143. 
EVIDENCE, 

admissibility  of,  a  question  for  the  judge,  18. 
written  or  unwritten, 

writings,  public  or  private; 

public,  of  record,  or  not  of  record; 
public  writings  not  of  record,  judicial  ornot  judicial,  316. 
bill  of  exceptions  to,  311.     See  tit.  Bill  of  Exception. 
demurrer  to,  311.     See  tit.  Demurrer  to  Evidence. 
presumptive.     See  tit.  Presumption. 
general  rules  of  evidence,  148. 

1.  Evidence  confined  to  points  in  issue,  169. 
relevancy  of  proof,  169. 
effect  of  admission  on  record,  170,  171. 
of  judgment  by  default,  186. 
of  payment  of  money  into  court,  187. 
of  bill  of  particulars,  189. 
proof  of  other  transactions,  171. 

of  customs  in  other  manors,  173. 
of  custom  of  the  country,  174. 

of  acts  of  ownership  in  other  portions  of  property,  175. 
of  custom  of  tithing,  175. 
evidence  of  character  of  party,  when  admissible,  176,  177. 
rule  in  criminal  cases,  178. 

examples  to  illustrate  the  general  rule,  178,  179. 


INDEX  TO  VOL.  I.  (321 

EVIDENCE— co«/i7JUf(i. 

acts  and  declarations  of  prisoner,  when  evidonce  for  him, 
181. 
Affirmative  of  the  issue  to  be  proved,  194. 

in  action  on  game-lavs,  plaintitT need  not  disprove  the 
several  qualifications,   198. 

the  same  rule  in  proceedings    on  informations  before  mag- 
istrates, 199. 
negative,  when  to  be  proved,  195. 

where  breach  of  duty  alleged,  195. 

not  reading  thirty-nine  articles,  195. 

presumption  of  payment  of  bond,  197. 
of  legitimacy,  197. 

death  presumed  after  what  time,  197. 
receipt  of  notes,   198. 
plea  of  infancy,  199. 

prosecution  for  bigamy,  prosecutor  to  prove  consent  of 
parents,  199. 

where  a  person  is  charged  with  doing  the  act  compltjined 
of,  "  without  giving  due  notice,"   195. 

covenant  to  repair,  196. 
on  indictment  for   coursing  d^r,    "  without  the  consent   of 
the  owner,"  196. 

on  an  issue  upon  the  death  of  a  particular  person,  the 
party   asserting  the  death   has  to  prove   it,   197. 

where  the  law  presumes  in  favor  of  a  plea,  the  plaintiff  is 
to  disprove  it, 197. 

party  is  to  prove  all  facts  of  which  he   is  peculiarly  cogni- 
zant, necessary  for  his  case,  198. 
3.     Substance  onlj  of  the  issue  need  be  proved,  200. 

in  action  of  waste — sufficient  to  prove  that  defendant  cut 
a  less  number  of  trees,  201. 

in  action  on  simple  contract,  plaintiff  may  prove  less 
than  the  writ  demands,  201. 

in  action  against  sherifl',  plaintiff  declares  that  he  had  J.  S. 
and  his  wife  in  execution,  proof  that  he  had  only  J.  S. 
ia  sufficient,  201. 

in  action  for  slander,  rule  as  to  the  proof  of  the  words,  201. 

averment  in  replevin,  that  the  cattle  (damage  feasant) 
were  levant  and  couchant,  is  not  proved  by  showing  that 
part  of  them  were  so,  211. 

plaintiff  may  recover,  though  he  prove  a  more  ample  pre- 
scriptive right  than  he  claims,  211. 

proof  that  A.  was  church-warden,  not  sufficient  on   issue 


622  INDEX  TO  VOL    I. 

EVIDENCE continued. 


whether  A.  and  B.  were  church-wardens,  202. 
averment  that  plaintiff  was  constable  of  a  particular  parish, 
is  not  supported  by  proof  that  he  was  sworn  in  to  serve 
for  a  liberty  of  which  the  parish  was  only  part,  202. 
same  rule  in  criminal  cases,  202 

examples  in   prosecutions    for   treason,  murder,  fdUa 

pretences,  &c.  203. 
rule  with  respect  to  principal  and  accessary,    204. 
averments  immaterial,  when,  205,  206. 
rule  with  respect  to  matters  of  inducement,  200. 
averments,  merely  niattcr  of  inducement,    not   strictly 

proved,  when,  206. 
solvit  ad  diem — proof  of  payment  bef(>re  the  day,  200. 
contracts  to  be  truly  stated,  and    proved  as  stated,  207. 
See  tit.  Variance. 
Best  evidence  to  be  given,  217. 

meaning  and  extent  of  the  rule,  218,  301. 
copy  of  deed    not  evidence,    when  the   deed   can  be  pro- 
duced,_218. 

other  examples,  218. 
of  taking  of  oaths  entered  on  record,  219. 
best  proof  of  negative,  220. 
of  insurance,  218. 
of  registered  deed,  218. 
of  licence  to  trade,  218. 
of  discharge  of  insolvent,  219. 
of  deeds  in  general,  220. 
rule  in  cases  where  there  has  been  a  written  memorandum, 
or  receipt,  220,  221. 

terms  of  tenancy,  221. 
proof  of  resolutions  at  a  public  meeting,  221,  222. 
rule  as  to  proving  of  hand-writing,  223. 

as  to  disproving,  223. 
exceptions  to  the  general  rule,  224. 
entry,  proof  of,  259. 

authenticity  of,  259. 

in  letter  book,  when  secondary  evidence,  46S. 
in  letter  book  of  merchant,  263,  n. 
in  book  of  third  person,  265. 
in  book  of  steward,  evidence   against   impropria- 
tor, 261. 


INDEX  TO  VOL.  I.  (^23 

EVIDENCE— co«/»ni/ei. 

entries  of  tithes  received,  in  book  of  corporation, 
261. 

by  tradesman,  266. 

by  bankrupt,  266. 

time  of  making,  266. 

of  receipts  of  rent,  253. 

in  book  open  to  inspection,  265. 

on  court-rolls,  proof  of  nature  of  customary  es- 
tates, 418. 

on  Journals  of  House  of  Commons,  ho\Y  proved, 
407. 

copy  of  entry  in  public  books,  226. 

ap,  ointment  of  constables,  ofiicers  of  the  revenue, 
surrogate,  &c.  need  not  be  proved,  when,  226. 

admission  of  party  dispenses  with  strict  proof, 
when,  226. 

5.  Hearsay,  not  evidence,  229. 

?ec  tit.  Hearsay. 

6.  Parol  evidence,  when   admissible  with   reference   to  written   tn- 

slruments,  531. 
to  explain  latent  ambiguity,  5.31. 

See  tit.  Ambiguity. 
to  explain  mistake  in  will,  532. 

as  to  devisee,  532,  536 
as  to  fund,  532. 

as  to  description  of  property,  534. 
or  in  entry  of  surrender  of  copyhold,  540. 
to  explain  patent  ambiguity,  533. 
in  deed,  538. 
uncertainty  in  will,  538. 
blank  in  will,  539. 
blank    in   agreement,  which  need  not   have  been  written, 

540. 
blank  in  instrument,  kept  to  record  a  fact,  540. 
blank  in  bishop's  register,  540. 
not  to  contradict  or  vary  a  will,  547. 
not  to  vary  or  contradict  a  deed,  548. 

bond,  to  pay  on  a  certain  day,  cannot  be  shown  to  have 
been  intended  as  an  indemnity  against  another  bond, 
548.  * 

averment  of  receipt  of  money,  in  body  of  deed,  conclusive, 

549. 
memorandum  of  receipt,  indorsed,  not  so,  549. 
proof  of  different  consideration,  not  admitted,  549. 

another  consideration  or  use  may  be  shown,  649. 


f524  IN  HEX  TO  VOL    I 

TWDESCE— continued. 

in  case  of  fraud,  &c.  a  diflerent  consideration  may  be  shown, 

&c.,  551. 
delivery    of   deed     on    a    dift'eront     day    may    be    shown, 

553. 
customary  right  may  be  shown,  though  not  expressed   in  deed, 
when,  553. 
as,  for  heriot,  or  way-going  crop,  553. 
if    inconsistent    with    the   deed,    it     cannot     be   shown, 
554. 
time  of  holding,  mentioned  in  lease,  554. 
not  to  vary  or  contradict  policy  of  insurance,  55  4. 
or  charter-party,  555. 
or  promissory  notes,  555. 
or  mercantile  contracts,  556. 

usage  of  merchants  may  be  admitted  to  explain,  when,  556. 
parol    evidence    not    to    vary   agreement    within    stat.   of    frauds, 
559. 

as  to  vary  the  rent,  559. 
or  to  vary  quantity  of  goods  to  be  delivered,  560. 

time   of  delivery   may   be   shown   to   have  been   altered, 
561. 
declarations  of  auctioneers    not  admitted   to  vary  or  explain  the 

printed  conditions  of  sale,  560. 
contract  between  A.  and   B.  as  buyer  and  seller,  may  be  shown 

to  have  been  made  by  B.  as  agent,  561. 
not    to    vary    written    contracts  out    of    the    stat.    of  frauds, 
561. 
but    subsequent    agreement    to     vary,    may     be     shown, 
561. 
written  agreement,  when  discharged  by  parol,  663. 
proof  of  collateral  facts  to   show   the  meaning  of  contracting  parties, 

how  far  admitted,  562. 
usage  regarded   in  construction  of  contracts,  when,  556. 
not  admissible  to  contradict,  557,  558. 
to  explain  ancient  charter,  540. 
ancient  deed,  542. 

terms  of  admission  to  copyhold,  543. 
rule  in  equity  as  to  admissibility  of  parol  evidence,  566. 

rul§   as   to   defendant,  on  a  bill    for  specific    performance, 

568. 
rule  as  to  plaintiff,  570. 

rule  as  to  rectifying  mistakes  in  deeds,  &c.  576. 
rule  as  to  raising  trusts  in  wills,  577. 


INDEX  TO  VOL.  I.  625 


EVIDENCE.— continued. 


7.   Secondary  evidence  of  writings,  when  ndinitted,  452,  457. 
what  admitted,  458,  459. 

of  writing,  in  possession   of  opposite  party,  439,  440. 
of  lost  writing,  454. 
of  written  instrument,  the  suhject  of  the  suit,  441. 

EXAMINATION, 

before  conrts-niarlial,  14. 
before  commissioners  of  inclosnrcg,  14. 
before  commissioners  of  bankrupt,  13. 
of  bankrupt's  wife,  86, 
before  justice  of  peace,  14,  376. 
proof  of,  399. 

parol  evidence  to  supply  omission,  not  admissible,  S70. 
of  pauper  as  to  settlement,  376. 
of  single  woman  pregnant,  377. 
of  soldier  under  mutiny  act,  377. 

attested  copy  given  to  commanding  officer,  evidence  of 
settlement,  377. 
of  prisoner,  as  to  settlement,  377. 
of  witness, 

abroad,  or  going  abroad,  13. 

on  interrogatories,  13. 
as  to  interest,  2G7. 
in  chief,  rules  as  to,  26S. 
separate  examination  of  witnesses,  26S. 
leading  question,  268. 

to  witness,  called  to  contradict  another,  269. 
in  cross-examination,  275. 
cross-examination,  rules  as  to,  272.  , 

with  a  view  afterwards  to  contradict,  269. 
re-examination,  rules  as  to,  304. 
of  prisoner,  before  magistrate, 
taken  in  writing,    li3.     • 

in  the  words  of  the  prisoner,  113. 
taken  without  oath,  113. 

if  taken  with  oath,  not  admissible,  113. 
if  it  purports  to  be  so  taken,    parol  evidence  is  not   ad- 
missible to  prove  it  was  without  oath,  113. 
prisoner  to  be  allowed  to  speak  freely,  and  not  to  be  exam- 
ined like  a  common  witness,   114. 
when  taken,   examination  to  be  read   over   to  the  prisoner, 

114. 
not   indispensable,  that  it  should  be  signed  by  the  prisoner, 

114. 
if  ho  refuses  to  sign,  and    does  not    admit  it  to   be  true,  it  is 
not  admissible,  115. 

Vol.  T.  79 


626  INDEX  TO  VOL.  I. 

I.XAMm  ATION— continued. 

ought  to  be  signed  by  magistrate,  115.     Seo    Confession. 
minuties  of  examination,   though  not  admissible  as  a  judicial  ex- 
amination, may  be  used  as  a  memorandum,  115 

See  Witness,  Cross-examination,  Oath. 
questions  on  points  of  evidence, 

examination    of  witness  on   voire   dire,  as  to  form  of  swearing 

most  binding  on  him,   23. 
admissibility  of  evidence  as  to  misconduct  of  prosecutor's  agent, 

103. 
mode   of  cross-examining  a   witness  as   to  contradictory   state- 
ments, preparatory  to  the  contradictory  proof,  293. 
cross-examination  as  to  written   contradictory  statements,  in  the 

party's  possession,  296. 

or  as  to  such  statements  when  lost,  298. 
power   of  cross-examining   as   to   contradictory  representations, 

generally,  or  'as  to  representations  in  writing,  299. 
mode  of  re-examining  a  witness,  after  such    cross-examination, 

304. 

EXCHANGE,  (BILL  OF,) 

See  tit.  Bill  of  Exchange. 
EXCHEQUER, 

judgment  in  rem,  354. 

171  personam,  354. 

of  condemnation,  conclusive  as  to  right  of  seizure,  355. 

conclusive  as  to  all  persons,  354. 
of  acquittal,  whether  conclusive  as  to  illegality  of  seizure, 
S55. 

EXCISE.     See  tit.  Commissioners. 

EXCISE  BOOKS, 

transcribed  by  officers  from  specimen  papers,  415. 

EXCISE  OFFICER, 

acting  as  such,  evidence  of  appointment,  226. 

EXCOMMUNICATION, 

witness  not  incompetent  from,   26. 
EXECUTION, 

of  deed.  See  tit.  Deed. 
of  will.  See  tit.  Will. 
ejectment  by  one  claiming  under.     See  tit.  Elegit,  Ejectment. 

EXECUTOR-     See  tit.  Probate. 

admissible  to  prove  testator's  sanity,  when,  65. 
appointment,  proof  of,  344. 

examined  copy  of  probate,  397. 
not  incompetent  through  liability  to  actions,   52. 
estoppel  against,  323. 

a  good  attesting  witness  to  will,  when,  495. 
payment  to,  under  forged   probate,  effect  of,  844. 


INDEX  TO  VOL    I.  627 


EXECUTOR  DE  SOJY  TORT, 
competent  when,  52. 

EXEMPLIFICATION. 

of  deed  or  will,  not  evidence  385. 
of  record  under  great  seal,  384. 

under  seal  of  court,  386. 
of  probate,  397. 
of  letters  patent,  463. 
of  foreign  judgment,  899. 

EXPENCE, 

of  witness,  6. 

in  civil  cases,  6. 

coming  from  abroad,  7, 
con)pensation  for  loss  of  time,  7. 
in  criminal  cases,  9. 
in  felonies,  9. 
in  misdemeanors,  12. 
tender  of,  not  necessary  in  case  of  criminal  prosecution,  12. 

necessary,   to  witness   brought   before  commissionera  of  bank- 
rupt, 14. 
allowance  of,  to  prosecutor  and  witnesses   under  etat.  7  G.   4.  o.  64., 
11,  12. 

EXPLANATION, 

of  writings  by  parol  evidence,  531.     See  tit.  Ambiguity. 

EXPULSION, 

sentence  of  by  College,  not   impeachable  in  courts  of  cornmoD   law, 
357. 

EXTENT, 

inquisition  under  writ  of,  375. 

persons  claiming  property  may  cross-examine,  375. 


FACTOR.     See  tit.  Agent. 
FACULTY, 

from  ordinary,  when  presumed,  163. 

FATHER,  (PUTATIVE,) 

not  compellable  to  confess  himself  father,  276. 
may  confess  it,  if  he  choose,  276. 


FELONY, 


e.xpences  of  witnesses  allowed  on  trial,  9- 
conviction  of,  renders  incompetent,  28. 
copy  of  indictnient,  how  to  be  had,  425. 
whether  prosecutor  confined  to  one  act  of,  179- 


FEME  COVERT, 

service  of  subpoena  on,  3. 


628  INDEX  TO  VOL    I. 

FEME  COWERT— continued. 

admissions  by,  when  evidence  ugainst  liusband,  So. 
answer  of,  whether  evidence  against  her,  262- 

FEME  SOLE, 

in  action  by  woman  ns,   defendant  cannot  call  the   husband    to  prove 
the  uiarriage,  77. 

FENCES, 

on  question  of  liability    to  repair,  coninionera   when    not   competent, 
67. 

FIERI  FACIA?, 

proof  of,  390. 

when  judgment  to  be  proved,  S91. 

FILAZER'S  BOOK, 

not  evidence  of  writ,  390. 


FINE, 


FISHERY. 


chirograph,  evidence  of,  387. 

proclamations  of,  how  proved,  339. 

copy  of  proclamations  by  chirographer  not  evidence,  389. 

certificate  of  enrolment  of,  evidence  of  enrolment,  382. 


entry  of  licences    in  coart-rolls,  evidence  for  persons   claiming   under 
lord  of  manor,  253. 


FLEET  BOOKS, 

not  evidence  of  marriage.-j,  4  IP. 

FOREIGN  COURTS.    See  tit.  Admirally. 

foreign  judgment  in  criminal  case,  30. 
sentence  of  foreign  court  of  admiralty,  347. 

when  conclusive  in  our  courts,  347. 

between  what  parties,  347. 

upon  what  points,  348. 

when  not  conclusive,  349. 

when  not  admissible,  349. 
sentence  of  other  foreign  courts,  349. 

sentence  establishing  a  marriage,  when  conclusive,  350. 
sentence  of  acquittal  on  charge  of  murder,  350. 
sentence  vacating  acceptance  of  bill,  350. 
foreign  judgment  ^rzVfta/acje  evidence  of  debt,  when,  350. 

if  proceedings  regular,  353. 

proof  of  summons  of  party,  353. 
conclusive  when,  353. 
proof  of  sentence,  399. 

exemplification  of  sentence,  evidence,  399. 

copy  of  sentence  by  officer  of  court,  not  evidence,  3  99. 

FOREIGN  LAW, 

proof  of,  401. 

by  civil  code  of  France,  403. 
foreign  register  not  evidence  of  marriage,  410,  4n. 


INDEX  TO  VOL.  I.  (j29 

FOREIGN  JUDGMENT. 

not  conclusive,  852. 

when  void,  353. 

etiect  I  f,  in  evidence,  353. 

FOREIGN  BTATE, 

acts  of,  how  proved,  402. 
commercial  regulations  of,  402. 
navigation  laws  of,  40J,  n. 
treaties  of,  402. 

FORFEITURE, 

conviction  renders  incompetent,  2S. 

conviction,   not  conclusive  as  to  time   of  offence,   unless    specially 
found,  317. 

FORGERY, 

party  injured,  incompetent,  in  prosecution  for  forgery,  121. 

reason  of  the  rule,  123.  * 

incompetent  to  prove  forgery,  123. 
or  other  material  fact,  123. 

competent  to  prove  a  fact  merely  collateral,  122,  n. 

competent,  if  not- debited  by  his  banker,  122. 

competent  to  prove  u  receipt  forged,  having  recovered  the  mon- 
ey from  the  prisoner,  122. 

payee  of  bill,  who  was  to  pay  a  debt  of  the  drawer  by  means 
of  the  bill,  competent  to  prove  his  name  forged,  122. 

maker  of  note  competent  to  prove  that  he  did  not  make  it  paya- 
ble at  his  banker's  when,  122. 

supposed  indorser  not  made  competent  .by  release  from  the 
person  to  whom  the  bill  was  uttered,  but  who  had  not  given 
value  for  it,  135 

drawer  of  bill  or  note  competent,  if  his  responsibility  is  not  va- 
ried by  the  alteration,  123,  135. 

supposed  maker  of  note,  when  made  competent  by  release, 
135. 

supposed  acceptor  of  bill,  when  made  competent  by  release, 
135. 

drawer,  when  competent,  in  case  of  altering  a  genuine  instru- 
ment, 135. 

prosecutor  of  forgery  in  power  of  attorney,  competent,  if  power 
not  executed,  12  2. 

proof  of  other  forged  instruments,  in  prisoner's  possession,  ad- 
missible, 179. 

person,  whose  name  is  forged,  may  prove  the  forgery  in  civil 
actions,  when  the  question  arises  collaterally,  123. 

cashier  of  bank  of  England  competent,  122. 
proof  of  writing  being  forged,  224,  492,  493. 


630  INDEX  TO  VOL.  I. 

FORGERY— coH/j/)t(e(f. 


by    witness    ncqunitited    with  tho    writing;   of    supposed    writer, 

223. 
by  clerk  of  post-office,  493. 

to  disprove    hand-writing,  whether    the  euppoged    writer    siiould 
not  be  called,  if  competent,  223,  224. 
forged  instrument  evidence,  without  stamp,  620. 
forged  seal,  proved  by  seal-engravers,  291. 

probate  not  conclusive  as  to  will  being  true  in  criminal  cases,  345. 
dying  declaration  of  attesting  witness  to  a  bond  or  note,  as  to  its  being 
forged,  230. 


FRAUD, 


conviction  of,  a  cause  of  incompetency,  29. 
judgment  impeachable  for  fraud,  346". 

who  may  impeach  it,  346. 
verdict  obtained  by,  when  vitiates  a  judgment,  331. 

FRAUDS,  (STATUTE  OF.)     See  tit.  Statute. 

FREEMAN, 

competent  to  prove  bribery  at  election.";,  125. 
if  interested  to  any  amount,  incompetent,  65. 


GAMEKEEPER, 

deputation  o(,  inrolled  in  office  of  clerk  of  peace,  416. 

GAME  LAWS, 

action  or  conviction  on, 

qualifications  need  not  be  disproved,  198. 


GAMING, 
GAZETTE, 


conviction  for,  disqualifies,  when,  29. 

evidence  of  public  acts,  when,  407. 

evidence  of  proclamations,  public  addresses,  &c.,  407. 

not  of  presentations,  or  promotions,  &c.,  408. 

of  dissolution  of  partnership,  when,  408. 

of  notice  of  bankruptcy,  408. 
proclamation  for  reprisals,  in  Gazette,  evidence  of  war,  408. 
prockmiation,  reciting  that  outrages  had  been  committed,  and  oiTeriDg 
rewards,  evidence  of  such  outrages,  408. 

GENERAL  ISSUE, 

(See  the  titles  of  the  several  actions.) 

GENTOO, 

how  sworn,  23. 

GENUINENESS, 

of  impression  of  seal,  291- 
picture,  291. 


INDEX  TO  VOL.  I  5(3  J 

GENUINENESS— ron<in  wee/, 
liand-wiitiog,  492. 
opinion  of  inspector  of  franks,  whether  evidence,  493. 

GOODS.     See  tit.  £ssH7npsit,  Sale. 

written  contract  for  the  sale  of,   cannot  be  varied  by  parol    evidence, 
as  to  quantity  to  be  delivered,  560. 

GOSPEL, 

swearing  on,  24. 

GOVERNMENT, 

acts  of,  proved  by  the  Gazette,  407. 

actsof  Btate  of  foreign  government,  how  proved,  402. 

GRAND  JURY, 

witness  before,  questioned  as  to  what  passed,  289. 
member  of,  may  prove  finding  of  bill,  289,  n. 

GRANT.     See  tit.  Deed. 

ancient,  explained  by  usage,  541.  ^ 

custody  of,  to  be  shown,  when,  479. 
presumed  from  length  of  possession,  when,  16L 
co-extensive  with  the  enjoyment,  165. 

not  necessarily  presumed,  when    the  possession  can   be  otherwise 
explained,  K)4. 

GUARANTEE, 

entry    in    account     by    principal,    when     evidence    against     surety, 
258 

GUARDIAN, 

not  competent  in  action  by  infant,  59. 
cannot  release  a  witness,  in  a  suit  against  a  minor,  134. 
answer  of  minor  by,  evidence  against  guardian,  362. 
declarations  of,  not  evidence  against  the  minor,  89,  362. 
HABEAS   CORPUS, 

ad  iedificandum,  5 

for  witness  in  custody,  4,  5. 
on  ship-board,  5. 

application  for,  5- 

suing,  and  service  of,  5. 

HAND-WRITING,  (See  Signature.) 

proof  of,  by  person  acquainted  with  the    supposed  writer's  style,  223i 

483. 
by  one  who  has  seen  the  person  write,  484. 
by  one  who  has  received  letters  from  him,  486. 
in  the  case  of  Algernon  Sydney,  485. 
in  the  case  of  the  seven  bishops,  489. 
comparison,  not  allowed,  490. 

rule  in  case  of  ancient  writings,  491,  492. 
memorandum  to  refresh  witness's  memory,  as  to  hand-writing,  491. 
forgery  of,  howr  proved,  224,  492.     See  tit.  Forgery. 


532  INDEX  TO  VOL.  I. 

HAND-WRITING— con/inueJ. 


evidence  as  to  genuioeness  of  han(l-writin;»,  492. 

opinion   of  frank   inspector  as   to     genuineness,   when     admissible, 

493. 
whetlier  the  supposed  writer  should   be  called,  if  conopetent  to  dii- 

prove  the  writing,  223,  224. 


HAWKER  AND  PEDLAR, 


HEARSAY, 


in  action  against,  for   penalties,  the  plaintiff  is   to  prove  the  negative 
averments,  195. 


general  rule  as  to,  229,  234. 
.  Cases  distinguishable  from  cases  of  hearsay. 

1.  Testimony  of  witness  on  former  trial,  when  evidence,  230. 
between  the  same  parties,  231. 

on  same  points  at  issue,  231. 

the  very  words  of  such  witness  to  be  proved,  231. 

2.  Hearsay,  part  of  res  gesta,  admissible,  231. 

in  case  of  trader  absenting  himself  from  home,  to  show  motive 

of  absence,  231. 
letter  of  payee  to  maker  of  note,  contemporaneous   with  mak- 
ing of  note,  to  prove  consideration,  232. 
statement  at  time  of  making  purchase,  232. 
in  receiving  personal  injury,  232. 
of  deceased  person  as  to  state  of  health,  233. 
of  persons  in  pari  jure,  admissible,  240,  247,  250. 
to  disprove  the  fact  of  marriage,  240. 
complaint  of  woman   in  case  of  rape,  when,  and    how  far   re- 
ceived, 233. 
in  crim.  con.,  declarations  of  wife,  as  to  her  intention,  and  pur- 
pose in  eloping,  234. 
other  examples  in  criminal  cases,  234. 

II.  Exceptions   to  the    general   rule   on  the   subject   of  hearsay, 
234. 

1.  Dying  declaration  of  person  mortally  wounded,  235. 
admissible  only,  after  all  hope  of  recovery  lost,  235. 
of  criivjinal,  at  the  point  of  execution,  inadmissible,  236. 
of  subscribing  witness  to  a  forged  bond,  admitted,  236. 
evidence  in  case   of  murder,  though  a    subsequent   state- 
ment may  have  been  made  in  writing,  237. 
not  evidence  in  other  prosecutions,  237, 
not  evidence  in  civil  cases,  236. 


INDEX  TO  VOL    1  633 

H  EARS  AY— eon/inwf J. 

2.  Hearsay  on  qnestion  of  pedigree,  238.     Sco   Pedigree. 

declarations,  papers,  &c.  in  the  family,  in  Bibles,  registry  books, 
recitals  in  family  deeds,  &c.,  when  cvi.lence,  239. 

of  deceased  neighbors  not  evidence,  240. 

of  deceased  parent  as  to  time  of  birth,  240. 

of  deceased  parent   not  evidence  of  placo  of  birtli,  241. 
nor  to  prove  want  of  access,  241. 

of  deceased   persons,   supposed  to   have    been    married,   whea 
admitted,  240. 

deceased  surgeons,  241. 

of  deceased  husband  as  to  legitimacy  of  wife,   239. 

of  deceased   person,  as  to  having  been  relieved  by  parish,   or  hir- 
ed for  a  year,  not  admissible,  241. 

hearsay  of  relative,     inadmissible,  when  he  can    bo   produced, 
240. 

declarations  not  admissible,  if  made  post  litem   molam,  241. 

depositions  or   answer  in   q   former  suit,     not   evidence  against 
a   stranger,  247. 

depositions  in  former  suit,  situations  of  parties    when   to  be  prov- 
ed, 246. 
when  res  inter  alios  acta,  247,  n. 

3.    Hearsay  on   question    of  public  rights,  customs,  boundaries,  &.o, 
248. 
evidence  of  public  rights,  248. 
of  right  to  tolls,  248. 
of  boundaries,  customs,  &.C.,  249. 
such  declarations  ought  to  come  from  persons  having  no  interest 

to  misrepresent,  249. 
declarations  before  arbitrator,  246. 

depositions  in  a  former  suit   upon  a  different  custom,  when  ad- 
missible, 248. 
tradition  of  a  particular  fact,  not  evidence,  250. 

limitation  of  this  rule,   250,251. 
common   reputation    not  admissible  on  question  of  private  right, 
251. 

not  admissible  to  prove  presentation,  253,  n. 

4.    Old  leases,  rent-rolls,  licenses,  when  admissible,  252. 
on  prescription  affecting  general  right,  252. 
on  question  of  prescriptive  right  of  fishing,  253. 
entries  of  receipt  of  rent,  253- 
survey,  when  admissible,  2!54. 
counterparts  of  leases,  253. 
licenses,  253. 

Vol.  I.  80 


634  INDEX  TO  VOL.  I 

liE\RSAY— continued. 


evidence  of  possession  or  enjoyment,  when  necessary,  253. 
evidence  in  answer  to  bill  not  admissible,  360. 

5.  Declarations  or  entries  against  interest,  255. 

by  steward,  bailifl',  or  receiver,  charging  himself,  255. 

bill  oflading  by  deceased  master  of  vessel,  256. 

declaration  by  deceased  man  mid-wife,  as  to  child's  nge, 
256. 

by  deceased  copyliolders,  agreeing  to  restrict  their  right  of 
common,  evidence  against  other  copy-holders,  257. 

by  occupier  of  land,  as  to  e.\tent  of  adjoining  tenant's  land, 
258. 

declaration,  not  evidence,  if  the  person  alive,  though  sick, 
259. 

proof  of  declaration,  259.  See  Declarations  against  inte- 
rest. 

6.  Entries  by  deceased  rectors  or  vicars,  260. 

evidence  for  their  successors,  as  to  receipt  of  ecclesiastical 
dues,  260. 

entry  by  deceased  lessee  of  rectory,  evidence,  on  the  deter- 
mination of  the  lease,  for  the  impropriator,  261. 

by  steward  of  a  former  deceased  owner  of  the  estate,  261. 

in  parish  register,  when  evidence  as  to  modus,  261. 

not  evidence,  if  the  person  alive,  261. 

proof  of  entry,  261. 

7.  Entries  in  a  tradesman's  books,  263. 

made  by  a  deceased  shopman,  proof  of  the  delivery  of  gi  ods, 

when,  263. 

not  if  the  person  be  living,  264. 
in  a  merchant's  books,  when  admitted,  264. 
entry  by  clerk  who  is   living,  though  abroad,  not  evidence, 

264. 

used  as  a  memorandum  by  shopman,  264. 
by  servant,  stating  terms  of  agreement,  not  evidence,  265. 
by  tradesman  himself,  not  evidence,  266. 
in  a  tavern  keeper's  book,  open  to  customer,  admitted,  265 
clause   in  st.  7   Jac.    I,c.  12,  as   to   admissibility   of  shop 

books,  266. 


HEATHEN. 


may  be  witness,  22. 
how  sworn,  22. 


INDEX  TO  VOL.  F  gg5 

HEIR, 

competent  concerning  the  title  of  land,  65- 
estoppel  ngainst,  323. 
HERALDS'  BOOKS, 

evidence  on  question  of  pedigiee,  421. 
visitation  books  of  countrie.s,  evidence,  421. 
account  of,  421. 

HERIOT, 

due  by  custotn,  though  not  expressed  in  lease,  553. 
hearsay  evidence,  when  admitted  to  prove,  257. 
HIGHWAY, 

certificate  of  justice,  as  to  repair  of,  382. 

record  of  conviction  for   not   repairing  road,    evidence   of  non-liability 
of  another  parish  indicted  for  not  repairing  same   road,  331. 
HIRING, 

declaration  of  deceased  person,  not  evidence  of,  241. 
HISTORY, 

general,  when  evidence,  423. 
Speed's  Chronicle,  423. 
not  evidence  of  private  rights,  423. 
as  Camden's  Britannia,  423. 
Dugdale's  Monasticon,  423. 
Dugdale's  Baronage,  423. 
HONORARY   ENGAGEMENT, 

not  an  objection  to  a  witness,  54. 
HOSPITAL, 

governors  of,  when  competent,  54. 
HORSE, 

receipt  for  price  of,  containing  warranty  of  soundness,   does   not  require 
a  stamp,  528. 

HOUSE  OF  COMMONS, 

member  of,  cannot  disclose  the  councils  of  the  nation,  288. 
journals  of,  406. 

resolution  of,  not  evidence  of  the  truth  of  facts,  406. 
HUE  AND  CRY, 

party  robbed,  a  competent  witness  to  what  facts,  70. 
HUNDRED, 

in  action  against,  the  party  robbed  is  competent,  70. 
to  prove  the  robbery,  70. 
not  to  prove  other  facts,  70. 
as  the  venue,  70. 

See  tit.  Hue  and  Pry. 
inhabitants  of,  competent  for  the  hundred,  71. 
HUSBAND  AND  WIFE.     See  also  tit.   Wife.     .Adultery.     Feme  sole. 
competent  to  contradict  each  other,  in  collateral  cases,  79. 


(336  INDEX  TO  VOL.  I. 

HUSBAND  AND  WIFE— continued. 

in  a  suit   between   third    persons,  tha  husband  or  wife  may  be  called  to 

contradict  the  other  as  witness,  SO. 
in  Buch  suit,  tiie  wife  is  competent,  though  her  ovidence  may    lead  to  a 

demand  against  her  husband,  87. 
offer  by  wife,  to  settle  for  goods  sold  at  husband's  shop,  86. 
husband  or  wife  of  party  to  the  suit,  incompetent,  77. 
reason  of  this  rule,  77. 
though  divorced  for  adultery,  83. 
though  the  other  consent,  83. 
not  competent  against  each  other,  77. 
in  actions,  77. 

in  prosecutions,  to  crirninato  directly,  77. 
in  treason,  So. 
whether  wife  compellable  to  give   evidence    tending   to   criminate  hus- 
band, 79. 
whether  compellable   to   give   evidence  charging  the  other  in  collateral 

Buits,  80. 
not  competent  for  each  other,  81. 

on     a   question,   whether   goods     are   the   property    of  a  man 
or     his    wife,    he   is   not     competent   to     prove   the     latter 
fact,  82. 
on  indictment  for  conspiracy,  the  wife  of  one  defendant  is  not   a 

competent  witness  for  the  rest,  81. 
declarations  or  letters  by  one,  when  evidence    for  or   against   the 

other,  81,  82. 
wife  of  interested  witness  not  competent,  65. 

of  convict,  when  competent,  47. 
wife's  confession  of  q   trespass   not   evidence   against   her   hus- 
band, 81. 
acknowledgment  of  payment  of  a  debt,  not  evidence  against  him, 

86. 
declarations  of  wife,  employed  as  agent,  85. 
admission  in  a   business,  of  which  she   had    the  management, 
85. 
of  debt  being  due  for  goods  furnished  to  her,  86. 
as  to  the  terms  on  which  she  hired  a  servant,  85. 
dying  declarations  of  wife,  evidence  against  the  husband,  on  trial 

for  murder,  85. 
in  action  of  crim   con.,  wife's  letters  to   defendant   are   not   evi- 
dence against  the  plaintiff,  82. 

nor  is  her  confession  evidence /or  him,  82. 
conversation  between,  in  presence  of  a  third  person,  82. 
exceptions   to   general   rule,   as   to   competency   of  husband  or  wife, 
83 

in  prosecutions,  for  marrying  by  force,  the  woman  is  compe- 
tent, 84. 


INDEX  TO  VOL.  I.  ti37 

HUSBAND  AND  V/IFE— continued. 

for  bigamy,  Bccond  wife  competent,   after  proof  of 

first  marriage,  84. 
for  offence  against  the  woman's  person,  she  is  com- 
petent against  the  husband,  84. 
wife  may  exhibit  articles  of  peace  against  liim,  85. 

or  apply  for  information,  85. 
in  appeal  against  order  of  bastardy,  married   woman  may  prove 
the  criminal  connection,  86. 

but  cannot  prove  non-access,  87. 
in  appeal  against  the  removal  of  a  woman,  as   widow  of  A.   B., 

she  is  competent  to  disprove  the  marriage,  80,  87. 
woman  cohabiting  and  passing  as  wife,  whether   witness   for  the 

man,  88. 
wife  of  bankrupt  may  be  examined  by  commissioners,  when,  86. 
answer  by   wife,  whether  evidence   against  her,  after  her  husband's 

death,  362. 
wife  not  admissible  for  defendant,  to  give   evidence    of  conversations 
with  her  deceased  husband,  in  action  by  executor,  83. 


IDENTITY, 

of  party,  executing  a  deed,    when   necessary  to   be  proved,  in   action 
on  the  deed,  475. 
IDIOTS, 

incompetent,  18. 
ILLEGITIMACY.     See  tit.  Bastard,  Legitimacy. 

INPROPRIATOR, 

entries  in  books  of,  260. 

INCLOSURE, 

commissioners  of,  may  summon  witness  to  appear  before  them,  when, 
14. 

INCOMPETENCY, 

of  witness  according  to  our  law,  18. 

INDEMNITY, 

acts  of,  for  witnesses,  277,  n. 

INDENTURE.     See  tit.  Deed. 

book  kept  for  recording  parish  indentures,  413. 
INDENTURE  OF   APPRENTICE.     See  tit.  Apprentice. 

INDIA, 

evidence  of  witnesses  resident  there,  how  procured,  16. 

INDICTMENT, 

averment  in,  when  not  necessary  to  be  proved,  207. 


iySQ  INDEX  TO  VOL.  I. 

INDICTMENT— coniinueJ. 

as.  in  indictment  for  robery  near  the  highway,  207. 
for  robbery  in  the  liouso  of  A.  B.,  207, 
for  arson  in  tlio  night-time,  207. 
for  murder  of  officer  in  execution  of  office,  207. 
for  burglary  in  ihe  house  of  J.    D.  with    intent   to  steal 
the  property  of  J.    W.,  the   averment   of  property  is 
material,  207. 
proof  of  80  much  of  the  indictment    as  cliarges   n  substantial    crime, 
sulficient,  202. 

if  it  charges,  that  defendant  did  and  caused  to  be  done,  enough  to 
I  prove  either  one  or  tlie  other,  202. 

if  defendant  is  charged  with  composi?ig,  printing,   and  publish- 
ing a  libel,  he  may  be  convicted  only  of  tlie  printing    and  pub- 
lishing,  203. 
for  felony  at  a  certain  place,  and  no  such  place  in  the  county,  wiieth- 

er  indictment  void,  217. 
copy  of,  in  felony,  not  to  be  had  by  defendant,  without  order  of  Court, 
425. 

but  if  produced,  admissible,  though  without  order,  426.  _^ 

in  misdemeanors,  order  not  necessary,  42ij. 
INDORSEE.     See  tit.  Promissory  JVote,  Bill  of  Exchange. 
INDORSEMENT, 

averment  of  date  of,  need  not  be  strictly  proved,  205. 

of  payment,  on  deed,  not  conclusive,  549. 

of  enrolment  on  bargain  and  sale,  o87. 

of  date  of  enrolment,  no  part  of  record,  387. 

of  writ,  evidence  against  sheriff,  391,  n. 

INDORSER, 

competency  of,  43,  61. 

of  note,  may  prove  consideration  usurious,  43. 

whether  competent  to  prove  it  an  accommodation  note,  61. 
of  bill,  may  prove  that  it  was  made  in  England,  though   purporting  to 
be  made  abroad,  43. 

INDUCEMENT, 

averments,  which  are  merely  inducement,   rule   as  to   proof    of,  200, 
206. 


INFAMY, 


INFANCY, 


conviction  of  infamous  crime  incapacitates,  28. 
what  crimes  incapacitate,  28. 
rule  of  civil  law  on  this  subject,  28,  n. 
proof  of  judgment  necessary,  30. 
admission  of  conviction,  does  not  disqualify,  30. 

plea  of, — replication,  promise  confirmed  after  full  age,  &c. 


INDEX  TO  VOL.  I  (539 

INFANCY— continued. 

piool  of  promise  to  pay  is  BulHcieiit  on  part  of  plaintifT,  199. 
INFANT, 

competent  witness,  wiien,  19. 

declaration  of,  without  oath,  not  admissible,  20. 

confirmatory  evidence  of,  20. 

in  action  by  guardian  of,  not  competent,  59,  S9. 

answer  of,  by  guardian,  not  evidence  against  him,  89,  362. 

INFERIOR  COURT, 

judgment  of,  when  evidence,  396. 
proof  of,  396. 

INFIDEL, 

incompetent  witness,  when,  21. 

INFORMATION, 

liability  to,  will  not  render  incompetent.  51. 
on  game  laws, 

informer  need  not  disprove  the  qualifications,  198. 
before  justice  of  peace,  proof  of,  399. 

INFORHJER, 

acting  as  accomplice,  remark  on,  42. 
incompetent  witness  at  common  law,  125. 

competent,  when  the  statute  cannot  otherwise  be  executed,  125. 
in  penal  action  for  bribery,  125. 

exporting  machinery,  126. 
gaming,  126. 
other  cases,  126. 
employed" to  collect  information,  remarks  on,  42, 

not  allowed  to  discover  his  employer,  284. 

or,  to  whom  he  gave  the  information,  286. 

INHABITANTS. 

of  county,  competent  on  indictment  for  non-repair  of  bridge,  when, 

126. 
of  hundred,  in  action  by  party  robbed,  70,  127.  * 

of  parish,  where  penalty  given  to  the  poor,  when  competent,  127. 
in  actions  against  churchwardens  for  money  mis-spent,  126. 
in  prosecutions  under  highway  act,  127. 
inhabitants  of  parish,  indicted  for  non-repair  of  highway, 
not  competent  for  defendants,  127. 
rated,  competent  on  question  whether  lands  are  vested  in  overseers 

128. 
competent  by  stat.  54  G.  3,  c   170,  in  any  matter  relating  to  rates, 
boundaries,  settlements,  &c.,  128. 


g40  INDEX  TO  vol.    I. 

imiABYTAKrS— continued. 

declarations  by,  evidence  against  their  parish,  129. 
not  compellable  to  give  evidence  against  their  parish,  before  slat-  64 
G.  3,  129. 

mauEST, 

of  coroner,  whether   evidence  of  lunacy  against  one  claiming  as  ex- 
ecutor, 337. 
post  mortem,  nature  of,  375. 

INQUISITION, 

by  coroner,  374. 

of  escheat,  374, 

of  extent,  374. 

ad  quod  damnum,  374,  n. 

by  warrant  of  court  of  exchequer,  37S. 

of  lunacy,  whether  evidence  of  lunacy  in  issue  at  law,  337. 

evidence  of  a  prisoner  being  insane,  375. 
evidence  against  third  persons,  375. 
under  non  est  factum,,  375- 
post  mortem,  375. 
of /e/o  de  se,  evidence  against  executor  or  administrator,  374. 

not  conclusive,  374. 
finding  that  the  party  fled,  whether  conclusive,  374. 
of  office,  evidence  against  whom,  375. 

by  escheators,  commissioners,  sheriff,  &c.,  374. 

by  order  of  H.  of  Com.  respecting  fees,  373. 
not  evidence,  when  extra-judicially  taken,  375. 

inquisition  by  sheriff's  jury,  on  question  of  property,  375. 
proof  of  inquisition,  392. 

commission  ought  regularly  to  be  shown,  392. 

mauisiTioNES  nonarum,  405. 

INROLMENT,  (See  Enrolment.) 

INSANITY, 

ground  of  incompetency,  18. 

INSCRIPTION, 

on  banners,  proved  by  eye-witness,  221. 
on  monument,  evidence  of  pedigree,  239. 
INSOLVENT. 

discharge  of,  how  proved,  219,  382. 
INSOLVENT  DEBTOR'S  COURT, 

witness  attending  before  privileged  from  arrest,  5. 

INSPECTION, 

of  records,  425. 
of  indictments  in  cases  of  felony,  425. 

order  for,  425. 
in  cases  of  misdemeanor,  426. 

of  proceedings  in  inferior  courts,  427.^ 


INDEX  TO  VOL.  I.  g»^j 

INSPECTION— continued 

of  depositions  not  allowed  prisoner  before  trial,  427. 
of  parish  books,  428,  433. 

for  what  purpose,  433. 
of  books  in  public  offices,  429. 
how  to  obtain  inspection,  433. 
of  court  rolls,  429. 

corporation  books,  430. 

penalty  for  refusing  inspection  of,  430,  n.  (*) 
private  writings,  when  allowed,  436. 
papers  produced  under  notice,  effect  of,  441. 
rule  for,  when  not  allowed,  432. 

when  the  party  would  furnish  information  against  himself,  432, 

433. 
otherwise,  in  information  in  nature  of  a  qvo  warranto,  433. 
affidavit  in  support  of  motion  for  inspection,  433. 
rule  to  inspect,  after  issue  joined,  434. 
where  no  action  depending,  434. 
in  case  of  motion  for  mandamus,  434. 

or  information  in  nature  of  quo  warranto,  434. 
INSPECTOR 

of  flanks,  his  opinion  as  to  handwriting,  493. 
INSPEXIMUS 

of  letters  patent,  when  evidence,  463. 
of  endowment  of  vicarage,  480. 

INSURANCE, 

proo    of,  by  policy,  218. 

by  entry  in  the  company's  book  after  notice  to  produce  the 
policy,  218. 

See  tit.  Policy  of  Insurance. 
INSURER, 

competent  in  action  on  policy,  48. 

INTENTION, 

proof  of  collateral  facts,  admissible  to  show  intention,  562 
INTEREST, 

nature  of,  when  disqualifies,  45. 

incapacitates  witness,  46. 

degree  of  interest,  65. 

on  both  sides,  52,  66.  ^ 

examples,  66. 
influence  of  verdict,  50. 
principle  of  the  rule,  53.  * 

remark  on  the  old  cases,  46. 
modern  rule,  53. 
exceptions  to  the  rule,  121,  125. 
objection,  how  and  when  taken,  131. 
how  answered,  132,  139. 

Vol.  I.  81 


642  INDEX  TO  VOL.  I. 

INTEREST— continued. 

witness  acquiring  an  interest,  for  the  purpose  of  depriving  party  to  the 

suit  of  his  teslinnony  adniissihie,  137. 
witness  laying   wager   on    result  of  trial,    not   thereby   disqualified, 

139. 
witness  of  a  wager,  though  he  afterwards  bet  himself,  competent  to 

prove  the  wager,  137. 
acquired  since  cause  of  action,  138. 

on  note,  recoverable,  though  not  mentioned  in  particular,  191. 
declarations  against,  when  evidence,  255. 

examples,  255. 
endorsement  of  payment  of,  on  bond.     See  tit.  Endorsement- 

INTERPRETER, 

when  considered  as  an  agent,  101. 

INTERROGATORIES.     See  tit.  Examination. 
depositions  on,  14,  395. 
with  consent  of  both  parties,  14. 
to  witness  abroad  or  going  abroad,  13. 
examined  copy  of  by  clerk  of  judge,  388. 

IRRELEVANT  QUESTIONS, 

what  such,  272. 

if  answered,  not  to  be  contradicted,  272. 


ISSUE, 


evidence  to  be  confined  to  points  in  issue,  169. 
affirmative  of,  to  be  proved,  194. 
substance  of,  alone  need  be  proved,  200. 
granted  by  court  of  equity,  70. 

order  by  Chancery  that  party  to  the  suit  shall  be  examined  on 
trial  of  issue,  70. 

rule  as  to  proof  of  will,  under,  497. 

proof  of  verdict  upon,  389. 


JACTITATION  OF  MARRIAGE, 

sentence  of  ecclesiastical  court,  in  cause  of,  when  evidence  as  to  mar- 
riage, 342. 

not  corifelusive,  343. 

much  less  in  criminal  prosecutions,  844. 

JEW 

may  be  witness,  22. 
how  to  be  Bworn,  23. 

JOURNALS 

of  House  of  Lords,  406. 

evidence  of  their  proceedings,  406. 

proof  of  judgment  on  appeal,  406. 

not  evidence  of  the  facts  stated  in  the  judgment,  406. 


INDEX  TO  VOL.  I  (343 

JOURNALS— continued. 

proof  of  address  to  the  king,  406. 

resolutions  in,  not  evidence  of  truth  of  facts  there  affirmed, 
406. 

except  relating  to  matters  of  state,  406. 
of  House  of  Commons,  406. 

evidence  of  their  proceedings,  406. 
proof  of  entry  in,  406. 

by  examined  copy  compared  with  original,  407. 
printed  copy  not  evidence,  407. 

JUDGE, 

rule  as  to  special  jurisdictions,    with  respect   to  the  effect   of  a  sentence, 

357. 
copy  of  depositions  signed  by  judge's  clerk,  388. 

JUDGMENT.     See  tit.  Verdict. 

by  default,  its  eifect,  as  an  admission,  186.     See  tit.  Default. 
of  court  of  record,  when  evidence,  320. 

I.  Judgments  considered  with  reference  to  the  parties,  320. 

effect  of,  when  pleaded  between  same  parties,  321. 
when  not  pleaded,  322. 
same  parties,  who,  323. 
real  parties,  who,  324. 
effect  of,  between  privies,  324. 
privy  in  blood,  324. 
in  estate,  325. 
in  law,  325. 
not  evidence  against  stranger,  326. 
not  evidence  for  stranger,  326. 
exceptions,  327.     See  also  tit.    Verdict. 
evidence,  by  way  of  inducement  to  the  action,  332. 
when  proved  in  support  of  writ,  391. 

decree   between  vicar  and    impropriator,  evidence   between  suc- 
ceeding vicars  and  impropriators,  325. 
judgment  concerning  an   office,  evidence  for  or  against  a  succes- 
sor, C25. 
judgment  of  ouster  in  an    information  in    the  nature  of  quo  war- 
ranto, 136,  325. 

II.  Judgments  considered  with  reference  to  the  subject-matter,  333, 

on  what  points  evidence,  333,  334. 

judgment  in  debt,  bar  in  assumpsit,  when,  333. 
judgment  in  trespass,  bar  in  trover,  when,  333. 
judgment  in  trover,  bar  in  assumpsit,  333. 
judgment  in  second  action,  when    no  evidence  given   in^the 

former  action,  334. 
when  some  evidence  given  in  former  action,  334. 


(344  INDEX  TO  VOL.  I. 

JUDGMENT— coH<jriuc(i. 

judgment  to   bo  taken   with  reference  to    the  snbject-mat- 

ter,  335. 
judgment    in    ejectment   not   conclusive   as  to   the   right, 
336. 
'  conclusive  in  action  fur  mesne  profits,  336. 

efiect  of  judgments  in  real  actions,  335. 
in  criminal  cases,  whether  evidence  in  civil,  337. 
sentence  in  ecclesiastical  court    336. 
record  of  conviction,  337. 
eifect  of  conviction,  33S. 
coroner's  inquest,  337. 
record  of  acquittal,  338,  340. 
of  House  of  Lords,  how  proved,  396. 
of  court  of  exclusive  jurisdiction,  32S,  340. 
when  conclusive,  340,  356,  357. 
when  not  evidence,  340. 
impeachable  for  fraud,  34 L 
of  Ecclesiastical  Court,  341. 

in  nullity  of,    or    aflirmance  of  marriage,    when    conclusive,   on 

questions  of  legitimacy,  341. 
in  cause  of  jactitation,  evidence  in  ejectment,  34  L 
not  conclusive,  343. 

much  less  in  criminal  prosecutions,  345. 
evidence  between  what  parties,  342. 
when  conclusive  as  to  all,  342. 
impeachable  for  fraud,  346. 
sentence  for  fornication,  not  evidence,  336. 
on  validity  of  will,  and  right  of  administration,  conclusive,  343. 
of  Admiralty  Court,  346. 

sentence  of,  in  questions  of  prize,  346. 
effect  of,  346. 
when  conclusive,  346. 
proof  of,  349,  393. 
of  Foreign  Court,  328,  347,  349,  399. 
effect  of,  348. 
when  conclusive,  348. 
when  not  conclusive,  349. 
when  not  admissible,  340,  349. 
of  Court  of  Exchequer,  328,  354. 

inrem.  conclusive  to  all  the   world,  328,  354. 

particularly  as  to  right  of  aeizure,  354.  ' 

in  personam,  354. 

judgment  of  acquittal,  whether  conclusive  as  to  illegality  of  seiz- 
ure, 355. 


INDEX  TO  VOL.  I.  545 

JUDGMENT— coiiiinued. 

of  Commissioners  of  Excise,  355. 

condemnalion  by,  conclusive  of  right  of  seizure,  355. 
of  quarter  sessions,  discharging  order  of  removal,  329. 

evidence   of  what,  and  against  vviiom,  329,  330. 
its  effect  as  to  removing  parish,  330. 
privity  to  person  removed,  329. 
confirming  order  of  removal,  330. 
of  Members  of  College,  when  conclusive,  356. 
of  Inferior  Courts,  when  evidence,  and  to  what  extent,  380. 

general  rule  as  to  proceedings  of  special  and  limited    jurisdic- 
tions, 380. 
proof  of,  390, 
of  Foreign  Court,  in  criminal  case,  30,  350. 

proof  of  judgment,  390.  • 

examined  copy,  3S8,  390. 

examined  copy  of  memorial  of  assignment  of  judgment,  388.  n. 
copy  of,  signed  by  the  master,  not  evidence,  38C. 
copy  of,  by  clerk  of  treasury,  not  evidence,  388. 
judgment-book,  not  evidence,  390. 

JUDGMENT  CREDITOR, 

sheriff's  return  not  evidence  of  payment  to,  391. 

JUDGMENT  ROLL, 

proof  of  proceedings  upon  elegit,   390. 

JURISDICTION, 

rule  as  to  special  jurisdictions,  340. 

judgment  of  courts  of  exclusive  jurisdiction,  effect  of,  3-10. 
of  courts  of  inferior  jurisdiction,  380,  396. 

JUROR, 

kindred,  an  objection  to,  17. 

JUSTICE  OF  PEACE, 

may  summon  witnesses,  14. 

may  put  witnesses  on  oath,  14. 

examination  taken  by,  proof  of,  399. 

proof  of  acting  as  such,  evidence  of  appointment,  226. 

certificate  of,  as  to  repair  of  highways,  382. 


K 


KINDRED. 

objection  to  juror,  17. 

proof  of,  as  stated  in  will,  by  rolls  of  spiritual  court,  496. 

KING, 

address  from  the  lords  to,  proved  by  the  Journals,  406. 
address  to,  proved  by  Gazette,  407. 


646  INDEX  TO  VOL.  I. 

L. 

LADING, 

bill  of,  when  evidence  of  property  in  consignee,   256. 
LANDLORD, 

not  competent,  in  action  against  sheri/T  to  prove  rent  in  nrrear,  56. 
competent  to  prove  whether  he  demised  first  to  A.  or  to  B.,  66. 
LARCENY, 

finding  stolen  property  in  possession  of  prisoner,    evidence  against    him, 

168. 
proof  of  other  goods,  besides  those  in  the  indictment,  being  in  his  posses- 
sion, 170. 
declarations  of  party  leaving  stolen  property  with  prisoner,  234. 
^  for  stealing  written  paper,  notice  to  produce  unnecessary,  443. 

witness  not  incompetent  for  petty  larceny,  28,  33,  n. 
incompetent  for  gnmd,  28. 
suffering  the  punishment  restores,  when,  33. 
what  sufficient  property  in  goods  to  maintain  indictment,  160. 

LAW, 

civil — rules  of,  as  to  incompetency  of  witnesses,  147. 
foreign — proof  of,  401,  403. 
of  colony,  proof  of,  402. 

LEADING  QUESTION, 

not  to  be  put  to  witness,  in  general,  268. 
what  questions  leading,  268. 
allowed  in  cross-examination,  275. 

to  what  extent,  275. 

in  examination  in  chief,  when,  269,  270. 
in  examination  of  witness,  to  contradict  another,  whether  regular,  270. 
depositions,  containing  leading  questions,  364. 

LEASE, 

ancient,  when  evidence,  253. 

though  possession  under  lease  not  shown,  253. 
enrolled  in  office  of  bishop's  auditor,  415. 
priority  of  demise  proved  by  landlord,  66. 
what  implied  terms  may  be  proved  by  parol,  553. 
parol  evidence  as  to  time  of  holding,  554. 
counterpart  of,  evidence  against  assignee  of  the  term,  443. 
secondary  evidence  of,  by  book  of  public  auditor,  415- 
agreement  for,  when  exempted  from  stamp,  526. 
on  life,  death  presumed  when,  197. 
LEAVE  AND  LICENCE.     See  Licence. 

LEDGER  BOOK, 

copy  of,  not  evidence,  398. 

of  Ecclesiastical  Court,  when  proof  of  will,  398,  496. 


INDEX  TO  VOL.  I. 

LEGATEE, 

effect  of  payment  of  legacy  to,  137. 
attesting  witness  to  will,  legacy  void,  495. 
connpetent  to  prove  sanity,  when,  65. 

in  an  action  by  executor  to  recover  a  debt,  residuary  legatee  not  com- 
petent, by  releasing  all  claim  to  the  debt,  135. 

LEGITIMACY.     See  tit.  Bastard,  non-access. 

birth  during  marriage,  presumptive  evidence  of,  158,  197. 
how  rebutted,  158,  197. 
natural  infirmity,  non-access,  &c.  158. 
child  born  after  divorce  a  mensa  et  ihoro,  presumed  to  be  illegitimate, 

when,  159,  197. 
declarations  of  deceased  person,    to   disprove   a   supposed    marriage, 

240. 
declaration  of  husband  as  to  legitimacy  of  wife,  239, 
sentence  of  nullity  of  marriage,  or  in  affirmance  of,  conclusive,  when, 

336. 
sentence  of  ecclesiastical  court,  when  not  evidence,  336. 
interrogatories  in  chancery,  when  evidence  of,  365. 
^        situation  of  the  parties  to  be  proved  by  extrinsic  evidence,  359. 

LESSOR, 

in  ejectment,  not  compellable    to  give  evidence   for  defendant,   72. 

LETTER.     See  Mtorney. 

proof  of  sending  by  post,  447. 

secondary  evidenceof  contents  of,  458. 

by  clerk,  100. 

by  agent,  100. 

produced  to  contradict  witness,  how  to  be  given  in  evidence,  296. 

must  be  read,  296. 
of  co-conspirator,  when  evidence  against  another,  95,  98. 
containing  agreement,  when  exempt  from  stamp  duty,  530. 
of  attorney,  by   corporate   body,  to   deliver  a   deed,  does  not   make 

such  deed  theirs,  until  actual  delivery,  468. 
secondary  evidence  of,  452. 

LETTER  BOOK, 

entry  in,  when  secondary  evidence,  458. 

LETTERS, 

between  husband  and  wife,  when  evidence,  82. 
patent  constat  or  inspeximus  of,  463. 

LETTERS    OF  ADMINISTRATION, 

granted  without  jurisdiction,  void,  344. 
how  granted,  398. 
proved  by  certificate,  398. 

original  book  of  acts,  398. 


647 


648  INDEX  TO  VOL.  I. 

LETTERS  OF  ADMINISTRATION— co«ri««c</. 
proved  by  examined  copy,  398 
not  evidence  of  death  of  supposed  intestate,  344. 

LETTERS  PATENT, 

exemplification,  evidence  of,  463. 

LEVANT  AND  COUCIIANT, 

averment  of,  proof,  when  sufficient,  2H. 

LEX  LOCI, 

proved  by  customary  descent  entered  on  court  rolls,  418. 


LIBEL, 
LICENCE, 


magistrate's  clerk,  when  not  bound  to  answer  questions,  276. 

presuTied  from  usage,  164. 

from  the  crown,  how  proved,  219. 

old  hcences  from  lord  of  a  manor,  for  fishing,  &c.  253. 

to  enclose,  when  presumed,  164. 

plea  of,  sheriff's  return,  evidence  under,  301. 


LIGHTS, 


twenty  years'  possession  of,  a  groundfor  presuming  an  agrqpment  or 
grant,  163. 

LIMITATIONS,  (Stat,  of) 

admission  by  wife,  86. 
LIS  MOTA, 

deposition  made  post  litem  motam,  not  admissible,  243,  364. 
award,  post  litem  motam,  246. 
meaning  of  term  lix  mota,  24.5. 

LLOYD'S  BOOK, 

evidence  of  capture  of  ship,  414. 
LOG  BOOK 

of  ship,  evidence  to  prove  time  of  convoy's  s.ai!ing,  414. 

LOSS 

of  writings,  how  proved,  452,  454.     (See  Secondary  Evidence.) 

of  record,  386. 

of  deed,  profert  dispensed  with  in  case  of,  457. 

lost  deed  or  note,  execution  of,  when  to  be  proved,  452. 

genuineness  of  note  to  be  proved,  452. 
when  paper  thrown  aside  as  useless,  454. 
in  case  of  death  of  parties  possessed  of  instrument,  456. 
LUCID  INTERVAL 

of  witness,  19. 

LUNACY, 

coroner's  inquest  of,  whether  evidence  against  one  claiming  as  execu- 
tor, 337. 
inquisition  of,  evidence  for  prisoner  of  being  insane,  375. 
evidence  against  third  persons,  375. 
evidence  under  non  est  factum,  375. 


INDEX  TO  VOL.  I.  tJ4g 

LUNATIC, 

incompetent,  18. 


M 


JMAGISTRATE 

may  summon  witnesses,  14. 

may  put  witnesses  on  oatii,  14. 

examination  taken  by,  proof  of,  399. 

proof  of  acting  as  such,  evidence  of  appointment,  226. 

certificate  of,  as  to  repair  of  highways,  382. 

MAHOMETAN 

may  be  a  witness,  23. 
sworn  on  Koran,  23. 

MAKER 

joint,  of  note,  when  competent,  67. 

MALICIOUS  PROSECUTION, 

action  for, 

affidavit  used  by  defendant,  when  evidence  against  him,  380. 
copy  of  indictment,  how  obtained,  425. 

evidence,  if  produced,  though  without  order,  426. 
defendant's  evidence,  on  trial  of  indictment,  whether  admissible,  71. 

MANOR,  custom  of.     See  Descent,  Court-roUs,  Ancient  Writings. 
proof  of  being  bailiff  of,  105. 

court-rolls,  or  other  ancient  writings  of,  to  prove  customs,  253,  418. 
proof  of  custom    in  one   manor,  not   evidence  of  custom  in   adjoining 

n-janor,  173. 
otherwise  on  a  question  of  tenure,  in  one  of  several  connected  manors, 

173. 
survey  of  manor  or  estate,  when  evidence,  254. 

MANOR  COURT, 

proceedings  in,  evidence  between  whom,  417. 

rolls  of,  evidence  between  the  lord  and  his  tenants,  41  7. 

ancient  writings  of,  evidence  of  descent,  though  not  signed,  417. 

inspection  of  court-rolis,  420. 

proof  of  court-rolls,  424. 

MANSLAUGHTER, 

conviction  of,  may  be  on  trial  for  murder,  203. 


MAP 


MARK, 


of  estate,  or  survey,  254. 


attestation  of  will  by,  sulHcient,  500. 

Vol.  I.  82 


650  INDEX  TO  VOL.  I. 

MARKET, 

kept  for  twenty  years,  n  ground  for  presuming  a  grant,  163. 

MARRIAGE, 

contract  of,  proved  by  unstamped  letters,  525. 

in  prosecution   for  taking  by  force  and    n)arrying,  the   woman  is  com- 
petent against  the  man,  84. 
on  appeal  against  removal  of  a  woman,  as  widow,  &c.  she  is  compe- 
tent to  disprove  the  marriage,  87. 
legality  of,  determined  by  ecclesiastical  courts,  directly,  341. 

by  courts  of  common  law,  incidentally,  340. 
entry  of,  in  parish  register,  408. 
proof  of,  by  examined  copy,  409. 
sentence  of  ecclesiastical  court  concerning,  341. 
sentence  unnuling,  341. 

in  cause  of  jactitation,  when  evidence  against,  841,  342. 
sentence  in  affirmation,  341. 

sentence  in  proceedings  pro  salute  aniince,  not^evidence  as  to  fact 
of  marriage,  337. 
conviction  of  bigam)',  a  proof  of  illegality  of  second  marriage,  in  civil 

action,  338. 
in  foreign  country,  established  by  sentence  in  foreign   court,  349. 
copy  of  register  of,  in  foreign  chapel,  not  evidence  of,  410,  411. 

MARRIED  WOMAN.     See  Wife. 

MASTER, 

in  action  against,  for  negligence  of  servant,  servant  not  competent  for 
him,  56. 

MASTER  OF  SHIP, 

in  action  by,  for  freight,  the  declarations  of  the  owner  of  the  ship  are 
evidence  against  the  plaintiff',  91,  92. 

MEDICAL  MEN, 

allowance  to,  for  loss  of  time  in  attending  as  witnesses,  7.  (a) 

MEMORANDUM.     See  Entry. 

written,  used  to  refresh  memory,  289. 

not  evidence  per  se,  458,  220,  221. 
minutes  of  examination  before  magistrates,  115. 
agreement  unsigned,  used  as,  221. 
unstamped  receipt,  used  as,  518. 
entry  in  tradesman's  book,  266. 
of  payment,  endorsed  on  a  deed,  not  conclusive,  549. 

MEMORIAL 

of  annuity,  examined  copy  of  enrolment  of,  464. 
of  assignment  of  judgment,  proof  of,  388,  n.  464,  n. 
of  registered  deed,  when  evidence,  218,  464,  n. 
examined  copy  of  memorial  of  assignment  of  deed,  464,  n. 


INDEX  TO  VOL  I. 

MERCHANTS'  BOOKS, 

evidence  of  what,  264.     See  tit,    Tradesvian. 

MENSE  PROFITS, 

trespass  for,  336. 
judgment  after  verdict,  its  effect,  336. 

MIDWIFE, 

memorandum  made  by,  256. 

MILITARY  OFFICER, 

proof  of  being,  from  liis  acts,  226. 

MINISTER, 

certificate  of  minister  abroad,  as  to  marriage,  382. 
minister's  returns,  under  commission  of  Hen.  VIII.- 
not  be  shown,  392. 


651 


-commission  need 


MINOR, 


answer  of,  by  guardian,  not  evidence  against  minor,  362. 
evidence  against  guardian,  362. 


MISDEMEANOR, 

expense  of  witness  when  allowed  in  trial  for,  12. 

in  prosecutions  for,  defendant  entitled  to  copy  of  indictment,  426. 

information  of  witness  respecting,  when  evidence,  370. 


MISTAKE, 


confession  made  under,  111. 

no  ground    for  allowing  parol    evidence  to  vary  a   written    agreement, 

672. 
in  deed,  rectified  in  equity,  when,  576. 
in  will,  may  be  shown,  when,  532. 
in  giving  a  receipt,  108. 
in  bill  of  particular,  191. 
in  surrender  of  copyholder,  540. 

MODUS.     See  Tithes,  Rector,  Book,  Receipt,  Entry. 

persons  liable  to  tithes,  not  competent  to  prove  modus,  57. 
modus  decimandi  presumed  from  usage,  162. 

de  nan  decimando,  not  presumed  from  usage  alone,  162. 
in  question  of  farm  modus,  proof  of  exemption  of  other  farms  not  ad- 
missible, 175. 
proof  of  payments  for  other  farms,   when  admissible  to  disprove  mo- 
dus, 175. 
modus  of  farm,  terrier  evidence  of,  425. 

hearsay  evidence  admissible,  250,  251,  n. 
terriers,  from  private  custody,  inadmissible,  420. 

vicar's  signature  to,  not  essentially  necessary,  420. 
when  evidence  for  succeeding  rector,  420. 
entry  in  parish  register  respecting,  when  evidence  for  vicar,  261. 
entries  respecting  death  of  parties,  to  be  shown,  261. 
situation  of,  259. 


652  INDEX  TO  VOL.  I 

MODUS — continued. 

transcript  in  ancient  chartulary,  459. 

silence  concerning,  in  parliamentary  survey,  405. 

existence  of,  not  mentioned  in  T^alor  Beneficiorum,  404. 

declarations  of  deceased  oi;cupier,  evidence  of  parochial  modus,  250. 
though  liable  to  tithes,  251. 

hearsay,  that  so  much  per  aero  was  paid,  is  evidence,  250. 

hearsay,   that  a  particular   person  paid  so  much  in  lieu    of  tithes,  not 
evidence,  250. 
MONEY.     See  Payment  into  court. 

MONUMENTS, 

inscription  on,  evidence  of  pedigree,  239. 


MURDER, 


conviction  of,  on  indictment  for  [)etit  treason,  203. 

manner  and  msar.s  of  killing,  as  proved,  must  agree  in  substance  with 

those  laid,  203. 
on  indictment  for  murder  of  officer  in  execution  of  his  office,  proof  of 
his  authority  not  material,  204. 

the  special  matter  may  be  given  in  evidence   on  a  gen- 
eral indictment,  204. 
evidence  of  former  grudges,  180. 
acquittal  in  foreign  country  may  be  pleaded  in  bar,  350. 


NATIONAL  CUSTOM, 

proof  of,  423. 

NAVIGATION, 

acts  of  foreign  stale,  how  proved,  401,  n. 

NA,VY  OFFICE, 

book  of,  evidence  to  prove  a  sailor's  death,  413. 

NEGATIVE.     See  tit.  Affirmalive. 

of  issue  when  to  be  proved,  195. 

where  breach  of  duty  alleged,  195. 

where  a  person  is  charged  with  doing  the  act  complained  of 
"  without  giving  due  notice,"  195. 
on  indictment  for  coursing  deer,  "  without   the  consent   of 

the  owner,"  19fi. 
on  an  issue  upon  the  death  of  a  particular  person,  the  par- 
ty asserting  the  death  has  to  prove  it,  197. 
of  qualification,  198. 
where    the    law  presumes  in  favor  a  plea,  the  plaintiff  is  to    disprove 

it,  197. 
plaintiff  is  to  prove  facts  of  which   he  is  cognizant,    necessary  for    his 
*  case,  198. 

negative  when  not  to  be  proved,  195. 


INDEX  TO  VOL.  I.  653 

NEGATIVE.— co72<?wMei 

on  a  charge  of  culpable  omission,  195. 
examples,  195.  , 

NEW  SOUTH  WALES, 

evidence  of  witnesses,  for  trials  in  courts  of  N.  S.    W.,  how    procured, 
16. 

NEWSPAPERS, 

notice  of  dissolution  of  partnership  in,  40S. 

NICHOLAS  (Pope) 

taxation  by,  account  of,  404. 

evidence  of  value  of  livings,  404. 

NIL  DEBET, 

»     plea  of,  in  debt  for  penalties,  319,  320. 
NISI  PRIUS  RECORD, 

evidence  of  cause  being  tried,  231,  3S9. 

when  evidence  of  verdict,  389. 
NOLLE  PROSEQUI, 

to  make  defendant  witness,  74. 

NONARUM, 

inquisitiones,  history  of,  405. 
NON-ACCESS, 

not  to  be  proved  by  the  wife,  241. 

not  even  after  the  husband's  death,  87. 
nor  by  the  c^clarations  of  deceased  parents,  241. 
but  the  criminal  connection  may  be  proved  by  the  wife,  87. 
NON  ASSUMPSIT.     See  tit.  Agreement,  Assumpsit,  &c. 
NON  ATTENDANCE.     See  Aiiciidtrice. 
NON  EST  FACTUM, 

inquisition  of  lunacy,  evidence  under,  375. 

loss  of  deed  cannot  be  proved  by  plaintiff,  after  pleading  profert,  463. 

proof  of  execution  of  deed  dispensed  with,  on    payment    of  money   into 

court  upon  one  of  the  breaches,  465,  n. 
after  judgment  by  default  against  one  of  two  defendants,  plaintiff  may 

elect  to  be  nonsuited  as  to  the  other,  186,  n. 
plaintiff  may  elect  to  be  nonsuited  after  payment  of  money  into  court  by 
defendant,  187,  n. 

NON  JOINDER.     See  Partner. 

must   be  pleaded  in  abatement,  210. 
NOTARY  PUBLIC, 

protest  attested  by,  evidence,  382. 
NOT  GUILTY, 

defendant  cannot    show   under   general    issue,   in  action   of   tort,  that 
others  besides  the  plaintiff  ought  to  join,  210. 
may  plead  it  in  abatement,  210. 
in  trespass, 

for  assault  on  plaintiflfs  wife,  plea  of  not  guilty  admits  the  marriage, 
171. 


654  INDEX  TO  VOL.  I. 

NOTICE, 


in  action  for  putting  on  board  of  ship  combustible  matter,  without  no- 
tice, the  plaiiitifT should  prove  the  negative,   195 
of  action,  proof  of,  446. 
of  bankruptcy  in  Gazette,  408. 
of  dissolution  of  partnership,  in  newspaper,  40S. 
to  produce  papers  on  trial,  439. 
service  of,  439. 

papers  in  possession  of  a  party,  440. 
effect  of,  339. 
to  whom  given,  3. 
to  party  or  his  attorney,  3. 
proper  time  for  producing,  441. 
when  necessary,  442.  * 

papers  in  possession  of  third  persons — notice  to  the   party, 

when  sufficient,  440. 
calling  for  papers,  after  proof  of  notice,  441. 
inspecting  them,  when  produced,   makes  them   evidence, 

441. 
party,  when  compellable  to  produce,  436,   437. 
if  a  trustee,  436. 

in   action  by  seamen  for  wages,  437. 
when  the  other  party  is   interested   in  the  writing, 
437. 
proof  of  notice,  445. 

parol  evidence  of  notice,  446. 

duplicate  original,  445. 

examined  copy,  446. 

notice  in  writing,  and  by  parol,  at  same  time,  may 

be  proved  in  either  form,  446. 
notice  sent  by  the  post,  447. 

if  attested,  to  be  proved  by  attesting  witness,    464. 
after  proof  of  notice,  contents  of  paper  how  proved, 
439. 
not  necessary,  where  nature  of  action  is  sufficient  ^notice, 
441. 

in  trover  for  bond,  441. 
in  prosecution  for  stealing  note,  &c.  442. 
in  other  criminal  cases,  442. 
larceny,  442. 
high-treason,  442. 
where  possession  on   the  other  side  is   fraudulent, 
442. 
whether  necessary,  in  case  the  writing  is  in  court,  in  the  ad- 
verse party's  possession,  443. 


INDEX  TO  VOL.  I. 

NOTICE— continued. 

counterpart  of  deed,  when  evidence,  without  notice  to  produce 

the  original,  443. 
deed  produced  under  notice,  to  be  proved    by  the   other  party 
vvhen,  448. 
when  not,  448. 
entire  writing  to  be  read,  451. 
and  other  writings,  if  referred  to,  451. 
of  dishonor  of  note,  proof  of  notice, 

proof  of  notice,  445. 
to  quit, 

admission  by  not  objecting  to,  lOS. 
proof  of,  445. 

NUL  TIEL  RECORD, 

proof  of  issue  on,  384. 

where  the  record  is  in  the  same  court,  384. 
where  in  another  court,  385. 


665 


o 


OATH.     See  Swearing. 

evidence  of  witnesses,  for  prisoners  in   capital    cases,  formerly   taken 

without  oath,  21,  n. 
of  witness,  how  administered,  21,  22. 

effect  of,  21. 
examination  previous  t(^  swearing,  23. 
examination  as  to  opinions,  24. 
as  to  form  of  swearing  most  binding  on  witness,  23. 
peers  sworn  like  other  witnesses,  21,  n. 
of  office  as  to  secrecy,  how  understood,  145. 
taking  of  oaths  under  the  toleration  act,  how  proved,  219. 


OBLIGEE, 


OBLIGOR, 


release  by  co-obligee  operates  as  a  release  by  all,  134. 
cannot  compel  obligor  to  produce  copy  of  bond,  438. 

release  to  co-obligor  operates  as  such  to  others,  134. 


OCCUPATION.    See  tit.  Use. 

entry  in  book  of  land-tax  collector,  evidence  respecting,  256. 

OCCUPIER, 

clainiiug  under  u  custom,  not  competent  in  support  of  such  a  custom, 

57. 
hearsay  of,  respecting  parochial  modus,  250. 

respecting  parochial  or  manorial  boundary,  250. 

when  evidence,  258. 
declaration  of  against  interest,  258. 

to  negative  adverse  possession,  258 


656 


OFFICE, 


INDEX  TO  VOL    I. 

inquisition  of,  375. 

evidence  against  whom,  875. 
by  escheators,  coimiiissioner,  slieriff,  &c.  874. 
by  order  of  House  of  Commons,  respecting  fees,  375. 
not  evidence,  when  extrajudicially  taken,  375. 

ns,  by  sherifPs  jury,  on  question  of  property,  875. 
proof  of,  392. 

commission  ought  regularly  to  be  shown,  392. 
books  of,  when  evidence,  413.     See  Book. 

'  office-copy  of  record,  in  same  cause  and  in  same   court,  equivalent  to 
the  record,  387. 


OFFICER, 


rule  of  court,  under  hand  of,  388. 

of  public  company,  making  entry  in  company's    books,    need    not   be 

called,  260. 
competent  witness,  when,  51. 

though  liable  to  information,  51. 
proof  of  acting  as  public  officer,  evidence  of  being  such,  226. 
of  customs,  official  paper  kept  by,  when  evidence,  415. 

OFFICIAL  COMMUNICATIONS, 

when  not  to  be  disclosed,  284. 

OFFICIAL  RETURNS, 

when  evidence,  415. 
OLD  WRITINGS, 

proof  of,  417,    418. 

custody  of,   to  be  shown,  when,  479. 

usage,  when  admissible  to  explain,  540. 


OMISSION, 


OPINION, 


ORDER 


of  name  in  will,  not  to  be  supplied  by  parol  evidence,  539. 
in  written  instruments,  540. 

examination  as  to   religious  opinion,  24. 
of  v\'itness,  when  evidence,  290. 

on  question  of  science  or  art,  290. 

of  medical  men,  as  to  insanity,  cause  of  death,  &c.,  290. 

in  matters  of  trade,  290. 

of  underwriters,  290. 

of  artists,  291. 

as  to  genuineness  of  hand-writing,  492. 
general,  evidence  of  public  rights,  248. 

not  evidence  of  private  rights,  249. 

of  cDurt  of  equity  for  reading  depositions,  363. 


INDEX  TO  VOL.  I.  g57 

ORDER — continued. 

of  judge  for  production  of  papers,  438. 
of  bastard)',  appeal  against,  86,  87. 
of  removal  not  appealed  against,  effect  of,  330. 

of  sessions,  confirming  order  of  removal,  conclusive  as  to  third  parish, 
330. 
discharging,   conclusive  only   that  the   settlement  was  not 
with  the  appellants,  329. 

ORDINARY, 

purgation  by,  32. 

certificate  of,  when  conclusive  on  legality  of  marriage,  342. 
faculty  from,  presumed  in  the  case  of  a  pew  claimed,  as  appurtenant 
to  a  messuage,  163. 

OUSTER, 

judgment  of,  on  an  information,  325,  n. 

OUTLAWRY, 

judgment  of,  in  treason  and  felony,  renders  incompetent,  29. 

in  personal  action,  otherwise,  29. 
proof  of  judgment  of,  30. 
competency  restored  by  reversal  of  outlawry,  31. 

OVERSEER, 

parol  evidence  of  appointment  of,  when  admissible,  454. 

OVERT  ACT 

of  treason,  confession  of,  if  offered  as  the  sole   evidence  of  such  overt 

act,  must  be  proved  by  two  witnesses,  117. 
no  overt  act  of  distinct  treason  to  be  proved,  unless  laid  in  the  indict* 
ment,  178. 

or  unless  it  conduce  to  the  proof  of  some  laid,  178. 
of  treason,  committed  in  a   foreign    country,  admissible  in  corrobora- 
tion, 178. 

OVl^NER 

of  land,  not  competent  to  disprove  a  charge  attached  to  all  land  in  tho 

district,  57. 
of  ship,    his  declarations   are  evidence   against   him,  if  the  action    is 
brought  for  his  benefit,  91. 
in  action  by,  for  putting  on  board  combustible  matter  without  due 
notice,  plaintiff  must  prove  the  negative,  195. 

OWNERSHIP, 

possession  prima  facie  evidence  of,  160. 

in  land,  not  proved  by  acquiescence  of  holder  of  adjoining  land,  176. 


PAPAL  BULL, 

evidence  of  exemption  from  tithes,  421. 

Vol.  I.  83 


668 


PARDON. 


PARISH, 


INDEX  TO  VOL.  I. 


effect  of,  in  restoring  competency  of  witness,  35. 

in  case  of  perjury,  35. 
conditional  pardon,  36. 
under  sign  manual,  by  7  and  8  G.  4,  36. 
suffering  of  punishment  operates  as  a  pardon,  when,  33. 


name,  by  repute,  of,  216. 

inhabitant    of,   competent,  tiiough    penally    given  to  the  poor,   when, 
127. 

in  action  against   church-wardens  for   money  misspent, 

126. 
in  prosecution  for  non-repair  of  highway,  not  competent 

for  defendants,  127. 
in  prosecution  under  highway  act,  when,  127. 
rated,  competent  on    question  whether  lands   are  vested 
in  governors,  127. 

competent  by  stat.  54  G.  3,  c.    170,  in  any  mat- 
ter relating  to  rates,    boundaries,    settlements, 
&c.,  128. 
declarations   by,    when  evidence     against  tlieir 
parish,  85,  129. 
register,  when  first  commenced,  409. 
proof  of  marriage,  410. 
entry  of  marriages,  how  to  be  made,  409. 
copy  of,  to   be  transmitted   annually  to  registrar    of  diocese, 

409. 
not  to  be  contradicted  by  day-book,  516. 
entry  in,  as  to  modus,  261. 
inspection  of,  when  granted,  433. 
book  for  copies  of  rates,  413. 

for  account  of  parish  indentures,  413. 
containing  entries  of  payment  of  tithes,  409,  n. 
vestry-book,  414.  — 

examined  copy  of  register,  evidence,  409. 
variance  in  proof  of  averment  of  parish,  215,  216. 


PARLIAMENT, 


parliamentary  surveys,  evidence,  405. 
journals  of  the  House  of  Lords  of,  406. 

not  evidence  of  the  facts  stated  in  the  judgment,  406. 

proof  of  address  to  the  king,  406. 
journals  of  the  House  of  Commons,  406 

proof  of  entry  in,  407. 
acts  of,  316. 

general,  what,  317. 

public  and  private,  317. 


INDEX  TO  VOL.  I.  659 

PARLIAMENT— con/j«ue(i. 

acta  of,  public,  when  to  be  taken  notice  of  judicially,  without  being  set 
forth,  318. 

preamble  of,  evidence,  319. 
when  evidence,  without  pleading,  Sli). 
proof  of,  317. 
private,  317. 

when  to  be  noticed  judicially,  without  pleading,  318. 
recognized  by  public  act,  318. 
proof  of,  383. 

special  clause  concerning,  319,  383. 
proof  as  against  a  party  acting  under  it,  384. 

PARLIAMENTARY  SURVEY, 

copy  of,  evidence,  405. 

PAROL  AGREEMENT, 

discharged  by  parol,  563. 

discharge  of,  a  good  defence  in  equity  to  bill  for  specific  performance, 
565. 

PAROL  EVIDENCE.     See  Agreement,  Usage,  Blank. 

of  confession  before  a  magistrate,  when  admissible,  113. 

when  admissible,  where  there  has   been  a  written  memorandum,  or 

receipt,  220,  221. 
not  admissible  to  prove  contents  of  unstamped  instrument,  which  re- 
quires a  stamp,  504. 
though  such  instrument  wilfully  destroyed  by  one  of  the  parties,  504. 
as  to  situation  or  estate  of  party,  543. 
as  to  indefinite  term  of  power,  545. 

conversations  contemporaneous  with  written  contracts,  561. 
conversations  subsequent  to,  562. 
proof  of  collateral  facts  to  show  intention,  562. 
to  discharge  written  agreements,  565. 
to  supply  blank  in  presentation,  540. 
to  explain  ambiguities,  when  admissible,  531. 
where  writing  refers  to  an  extrinsic  fact,  546. 
respecting  parcels  of  things  demised,  544. 
latent  ambiguity,  531. 

mistake  in  name  of  devisee  in  will,  532,  536. 
in  description  of  fund,  533. 
in  description  of  estate,  534. 
patent  ambiguity,  633. 

as,  uncertainty  in  devise,  538. 
omission  of  name  in  will,  539. 

in  written  instruments,  540. 
in  bishop's  register,  540. 
in  surrender  of  copyhold,  540. 
to  give  effect  to  a  will,  633. 


6 GO  INDEX  TO  VOL.  I. 

PAROL  EVIDENCE— co/zfmuei. 

to  show  fraud,  551,  552. 

to  show  intention  by  proof  of  collateral  acts,  562. 

not  to  control  or  enlarge  a  will  or  deed,  548,  549, 

not  to  vary  the  terms  of  a  deed,  548. 

not  to  show  different  condition,  548. 

not  to  disprove  consideration,  549. 

except  to  prove  fraud,  &c  ,551. 

another  consideration  or  use  may  be  shown,  when,  549. 
delivery  on  a  diflereut  day  may  be  shown,  553. 
customary  right,  not  expressed  in  a  deed  may  be  proved,  553. 
as,  for  an  heriot,  or  way-going  crop,  553. 
but,  if  inconsistent  with  the  deed,  it   cannot  bo  shown, 
654. 
not  to  vary  the  time  of  holding,  554. 
policy  of  insurance,  554. 
charter-party,  555. 
promissory  notes,  555. 
mercantile  contracts,  556. 
agreements  within  the  statute  of  frauds,  550. 
other  written  agreement,  563. 
rule  in  equity,  concerning  the  admission  of  parol  evidence,  666. 

as  to  defendant^  on  a  bill  for  specific  performance,  568. 
as  to  ■plaintiff,  570. 
as  to  cases  of  part-performance,  575. 
to  rectify  mistakes  in  deeds,  &c.,  576. 
to  raise  trusts  in  wills,  577. 

PARSON, 

entry  by  deceased,  evidence  for  successor,  260. 

in  action   against,  for   non-residence,  what   sufficient  evidence  of  his 

being  parson,  227. 
in  suit  in  ecclesiastical   court   for  tithes,  where  defendant  pleads  that 

the   plaintiff  (the   parson)  had  not  read   the  39  articles,  defendant 

ought  to  prove  the  negative,  195. 

PART-PERFORMANCE 

of  agreement,  what  constitutes,  575. 

PARTICULARS  (BILL  OF) 

under  judge's  order,  190. 

its  use  and  effect,  190. 

confines  the  party  in  his  proof,  190. 

delivery  of  second  bill,  effect  of,  190. 

not  abridged  by  subsequent  demand,  190. 

mistake  in,  when  immaterial,  191. 


INDEX  TO  VOL.  I.  QQ\ 

PARTICULARS  (BILL  OF)— coniiimed. 
clerical  error  in,  192. 
error  in  date  in,  192. 
error  in  description  of  premises,  192,  n. 
whether  plaintiff  may  recover  beyond  the   particular,  in   consequence 

of  defendant's  evidence,  192. 
where  some  of  the  items   furnished  on  joint  credit,  and  there  is  a  plea 

of  non-joinder,  161,  192. 
interest  on  promissory  note  may   be  recovered,  though  not  claimed  in 

particular,  191. 
delivery  of,  193. 

particular  not  delivered  in  proper  time,  what  is  to  be  done,  193. 
proof  of,  193. 

PARTNER,  DORMANT, 

competency  of,  49,  n. 

when  not  a  party  to  a  contract,  whether  ho  may  prove  it,  49,  n. 

PARTNER, 

when  a  competent  witness,  60,  67. 

when  not,  59,  60. 

interest  of,  cannot  be  released,  60. 

release  to,  134. 

admission  by,  evidence  against  another,  when,  92. 

answer  of  one  partner,  to   bill   filed,  when  evidence  against  another, 

362. 
one  partner  may  disprove  the  authority  of  another  to   draw  a   bill   on 

the  partnership,  67. 
or  to  make  a  contract  for  sale  of  goods,  for  his  separate  debt,  68. 
verdict,  on  an  issue  to  try  the  fact  of  partnership,   when   evidence  of 

partnership,  332. 
on  proof  of  a  sale  to  defendant  and   A.    B.   as  partners,  A.  B.  cannot 

prove  that  he  bought  as  the  servant  of  defendant,  59. 
notice  of  dissolution  of  partnership,  how  given,  408. 

PARTNERSHIP, 

pleaded  by  way  of  abatement,  cannot  be  proved  by  a  partner,  60. 
former  verdict,  proof  of,  332. 


PARTY, 


when  privileged  from  arrest,  4. 

incompetent  to  give  evidence,  69. 

really  interested,  though  not  technically  a  party,  incompetent,  72. 

though  only  trustee,  69. 

governors  of  the  poor,  liable  to  costs  of  appeal,  69. 

suing  in  corporate  capacity,  69. 


662  INDEX  TO  VOL  I. 

PARTY— confinucd. 

order  for  examination  of,  effect  of,  70. 
examined  by  order  of  court  of  equity,  70. 
admission  by,  89.     See  tit  Admission. 
competency  of,  exceptions  as  to,  70. 

in  action  on  stat.  of  hue  and  cry,  70. 
in  action  for  malicious  prosecution,  71. 
members  of  corporation,  competency  of, 
compellable  to  produce  papers,  when,  435,  436. 
not  compellable  to  give  evidence,  72. 

rated  inhabitants,  on  question  of  appeal,  72. 
lessors  of  plaintiff  in  ejectment,  72. 
co-plaintiff  witness  against  another,  72. 
defendant  improperly  joined,  how  t6  be  admitted,  72. 
co-trespasser,  72. 

co-defendant,  pleading  bankruptcy,  not  competent,  74. 
co-defendant  submitting  and  fined,  74. 

in  ejectment,  how  made  a  witness,  76. 
in  indictment,  74. 
in  action  on  contract,  75. 
in  action  of  tort,  75. 
defendant  suffering  judgment  by  default,  when   competent,  74, 
75.     See  Co-plaintiff,    Co-defendant,   Co-trespasser. 
for  co-defendant,  75. 
against  co-defendant,  75. 
witness  made  defendant  by  mistake,  76. 
party  to  instrument,  when  allowed  to  invalidate  it,  43. 
PATENTS, 

how  pleaded  and  given  in  evidence,  463. 

PAUPER, 

examination  of,  as  to  his  settlement,  not  evidence  after  his  death,  376. 

PAYEE, 

competency  of,  43,  61,  67. 

PAYMENT, 

to  judgment  creditor, 

sheriff's  return,  not  evidence  of,  391. 
to  third  person  by  plaintiff's  appointment,  is  payment  to  plaintiff  him- 
self, 200. 
memorandum  of  payment  endorsed  on  deed,  not  conclusive,  549. 

PAYMENT  INTO  COURT, 

its  effect  as  an  admission,  187. 

though  paid  by  mistake,  cannot  be  recovered  back,    187. 
plaintiff  may  be  nonsuited,  after  payment  into  court,  187,  n. 
admission  of  legal  demand  to  a  certain  extent,  187. 


INDEX  TO  VOL.  I.  663 

PAYMENT  INTO  COURT— continued 

generally,  upon  the  whole  declaration,  it3  effect,  ISS- 

admits  jurisdiction  of  the  court,  188. 

admits  execution  of  deed,  188,  465,  n. 

admits  plaintiff's  title  to  sue,  188. 

admits  contract,  to  what  e.vtcnt,  187. 

admits  that  contract,  within  statute  of  frauds,  was  in    writing,  188. 

admits  that  policy  has  not  been  altered,  188. 

admits  sufficiency  of  stamp  on  bill,  1S8. 

dispenses  with  proof  of  hand-writing,  in  an  action  on  bill  of  exchange, 
188. 

dispenses  with  proof  of  deed,  465,  n. 

does  not  waive  objection,  that  contract  illegal,  189. 

does  not  admit  collateral  parts  of  contract,  as  to  liquidation  of  dam- 
ages, 189. 

precludes  defendant  from  disputing  the  quality  of  goods  sold  by  sam- 
ple, 18S. 

upon  a  breach  of  covenant,  dispenses  with  proof  of  execution  of  deed 
on  plea  of  non  est  factum,  465,  n. 

production  of  the  rule  by  defendant,  does  not  give  the  reply  to  plain- 
tiff, 1S9. 

proof  of  payment  into  court,  189. 

PEDIGREE.     See  Descent,   Ejectment. 

bill  in  Chancery,  not  evidence  of  pedigree,  359. 

relationship  of  parties  must  be  proved  by  extrinsic  evidence,  359. 
special  verdict,  between  third  parties,  whether  evidence,  328. 
visitation-books  of  counties,  421. 
proof  of  by  hearsay,  238. 
verdict,  evidence  of,  324. 

dying   declaration  of  a  person  as    to  relationship    between    other 
persons,  not  evidence,  236. 
(See  Hearsay  on  question  of  Pedigree.) 


PEERS, 


entitled  to  benefit  of  clergy  without  burning  in  the  hand,  34. 
sworn  as  another  witness,  21,  n. 


PENAL  STATUTES, 

in  action  under,  proviso  containing  exemption  may  be  shown,  320. 
evidence  of  statutes  under  general  issue  in,  319. 

PENALTIES, 

action  for, 

proviso  containing  exemption  may  be  shown,  320. 

PERAMBULATION, 

evidence  of  boundary  of  parish,  249. 


664  INDEX  TO  VOL.  I. 

PERFORMANCE, 

pica  of,  in  action  of  covenant,  admits  part  of  deed  set  out,  171. 
PERJURY, 

proof  of,  by  a  single  witness,  not  sufficient,  151. 
conviction  of,  incapacitates  witness,  28. 

effect  of  pnrdon  in  restoring,  35. 
party  injured,  competent  witness,  oh  prosecution  for,  120,  121. 
proof  of  defendant's  oath  to  answer  in  Chancery,  394. 
several  indictments  against  several, — defendant  in  one  case  competent 

for  defendant  in  another,  47. 
on  indictment  for,  in  answer  to  a  bill  of  injunction  filed    by  B.,  B.    is 
is  competent,  50. 
PETITIONING  CREDITOR, 

fact  of  creditor  proving  before  commissioners,  not  evidence,  107. 
declarations  by  petitioning  creditor,  admissible  in  action  against  sher- 
iff, 91. 
PETIT  LARCENY, 

disqualified  a  witness  at  common  law,  28. 
*  no  disqualification  now,  28. 

PETIT  TREASON, 

on  indictment  for,  prisoner  may  be  found  guilty   of  murder,  203. 

PEW, 

usage  of,  when  a  ground  for  presuming  a  faculty,  163. 
PHYSICIAN, 

examined  as  to  confidential  communications,  144. 


PILLORY, 


PLACE, 


punishment  of,  abolished,  except  for  perjury,  or  subornation  of  perjury, 
30,  n. 

does  not  disqualify  a  witness,  30. 


variance  in  proof  of,  215. 

PLENE  ADMINISTRAVIT,  * 

plea  of,  admits  being   administrator,  171. 
POLICY  OF  INSURANCE, 

subscription  of,  by  agent,   104. 

action  on,  rule  for  production  of  papers,  438. 

person  for  whose  benefit  policy  effected,  not  competent,  63. 

construed  with  refference  to  usage  of  merchants,  556. 

not  to  be  contradicted  by  usage,  557. 

alteration  of,  its  effect  with  regard  to  the  stamp,  513,  517. 

with  consent,  513. 

to  correct  mistake,  517. 
policy  by  agent, 

general  authority  of  agent  to  subscribe  policies,  104. 
receipt  of  premium,  159,  n. 


INDEX  TO  VOL.  I.  665 

POLICY  OF  INSURANCE— con<t7i7(er/. 

competency  of  witnesses,  4b 

underwriter  subscribing  same  policy,  47. 
broker  competent,  4S. 

declarations  of  party  interested,  when  admissible,  92. 
captain,  when  competent  to  prove  ship's   original  destina- 
tion, 49. 
not  competent  on  question  of  deviation,  49. 

POLL-BOOK, 

at  election,  evidence,  415. 

POLYGAMY.     See  tit.  Bigamy. 

POPE, 

bull  of,  421. 
licence  from,  421. 

POSSESSION, 

prima  facie  evidence  of  property,  160. 

ground  for  presuming  a  grant,  when,  157,  161,  162. 

remarks  on  such  proof,  165,  166. 
effect  of,  in  explaining  terms  of  grant,  543. 
stolen  property  found  in  prisoner's  possession,  168. 

remarks  on  such  proof,  169. 
writing  in  possession  of  party,  proof  of,  440.     See  Custody. 
adverse  possession      See  Presumption  ■ 


POST, 


POSTEA, 


POWER, 


proof  of  sending  letter  or  notice  by,  447. 

contents  of  such  letter,  how  proved,  458. 

endorsed,  when  evidence  of  verdict,  3S9. 

evidence  that  cause  was  tried,  231,  389. 

may  be  produced  by  associate,  3S9. 

with  the  master's  allocatur,  evidence  of  costs,  389,  n. 


warrant  or  order  under,  how  executed,  470,  471. 
deed  under,  how  e.tecuted  and  attested  J' 468,  469. 
in  the  execution  of,  all   circumstances   required  by   creators  of  such 

power,  must  be  attended  to,  468. 
indefinite  term  of,  explained  by  parol,  545. 

POWER  OF  ATTORNEY, 

in  proving  deed  executed  under,  power  must  be  prodaced,  104,  466. 

secondary  evidence  of,  452,  459,  n 

question  on  secondary  evidence  of,  in  Lord  Melville's  case,  453. 

PRACTICE, 

motion  to  put  off  trial,  16. 

in  foreign  coarla  how  proved,  399. 

Vol.  I.  84 


QQQ  INDEX  TO  VOL.  I. 

PR^MUNIRE, 

*  disqualifies  witness,  2S. 

PREAMBLE, 

public  act  of  parliament,  evidence,  31S 

PRESCRIPTION, 

person  claiming  by,  competent,  58. 


must  be  proved  as  stated,  205. 
hearsay  not  evidence  of  prescriptive  right  261. 
unless  it  affect  a  public  right,  252. 


PRESENTATION, 

by  parol,  252,  n. 
Gazette,  not  evidence  of,  408. 
hearsay,  not  evidence  of,  252. 
blank  in,  supplied  by  parol,  540. 

PRESUMPTION  AND  PRESUMPTIVE  EVIDENCE, 
nature  of,  155,  166. 
presumption  of  law, — of  fact,  157. 
presumptive  evidence,  of  legitimacy,  158,  197. 
from  fact  of  birth  during  marriage,  158,  197. 
how  rebutted,  158. 
presumption  of  payment,  159. 

of  payment  of  bond  after  20  years,  197. 
how  rebutted,  197. 
release  of  quit-rent  not  presumed  from  non-payment,  160. 
possession  prima  facie  evidence  of  property,  160. 
grants,  agreements,  licence,  easements,  &c.,   presumed    from   usage, 

161. 
presumption  of  ownership,  from  acts  on  adjoining  land,  174. 
presumption  of  grant  not  necessary,  when  possession  can  be  otherwfise 

explained,  162. 
deed  of  composition  not  presumed  merely  from  usage,  163. 
grant  presumed  against  reversioner,  from  permission  of  tenant,  when, 

166. 
circumstantial  evidence  in  criminal  cases,  166. 
death  presumed  at  the  end  of  seven  years,  197. 

PRINCIPAL, 

how  far  affected  by  admission  of  agent,  99. 

declaration  of,  when  evidence  against  surety,  258. 

in  criminal  cases,  how  far  affected  by  act  of  agent,  102. 

entries  made   by    him   in  his   account,   when    evidence   against   his 

surety,  258. 
in  second  degree,  charged  as  principal  in  first  degree,  not  a  variance, 

204. 
charged  as  such,  cannot  be  convicted  as  accessary,  204. 
conviction  of,  evidence  against  accessary,  when,  331. 


INDEX  TO  VOL.  I.  667 

P  R INCIFAL— continued. 

witness  ngainst  accessary,  on  indictment  for  receiving  stolen  goods,  40. 
or  for  tailing  reward  to  help  tC  stolen  goods,  40. 

PRISON, 

book  of,  evidence  to  prove  Hme  of  commitment,  414. 
not  evidence  of  tho  came,  414. 

PRISONER, 

witness  for,  formerly  not  sworn,  8. 
evidence  as  to  character  of,  177. 
examination  of  prisoner.     See  Examination. 
as  to  settlement,  377. 

PRISONER  OF  WAR, 

examined  on  interrogatories,  5. 
brought  up  as  witness,  how,  6. 

PRIVILEGE  OF  WITNESS, 

from  arrest  during  attendance  on  trial,  4.  ■ 
when,  4. 
how  long,  4. 
before  arbitrator,  5. 

insolvent  debtors'  court,  5. 
commissioners  of  bankrupt,  5. 
court-martial,  5. 
in  going,  staying,  and  returning,  4. 
in  not  giving  evidence,  what,  276. 

1.  when  the  action  might  subject  to  penalties,  276. 

2.  or  subject  to  civil  suit,  278. 

3.  or  subject  to  forfeiture,  278. 

4.  or  degrade  the  character,  278. 

questions  reflecting  on  character  may  be  asked,  279. 

PRIVILEGED  COMMUNICATIONS, 

what,  not  to  be  disclosed,  284. 
communications  between  attorney  and  client,  140. 
official  communications,  287. 
rule  as  to  informer,  284. 


PRIVY, 
PRIZE, 


when  estopped  by  verdict,  as  well  as  party,  324. 


sentence  on  question  of,  in  Admiralty  Court,  346. 


PROBATE.     See  Ecclesiastical  Court. 

of  will  of  personal  property,  344,  397. 

conclusive  of  validity  of  will,  when,  344. 

not  conclusive  in  criminal  cases,  344. 

for  what  causes  impeachable,  344. 

forgery  of,  may  be  shosvn  by  adverse  party,  344. 

proof  of  executors'  title,  344. 

conclusive  as  to  being  executor,  344. 


QQQ  INDEX  TO  VOL.  I. 

PROBATE— continued. 

seal  of  ecclesiastical  court  need  not  be  proved,  897. 

in  case  of  probate  b^inferior  court,  bona  notabilia  may  be  shown,  344. 

probate  of  will  of  real  property,  not  evidence  of  will,  344,  397. 

not  evidence  of  relationship,  344,  397,  496. 
proof  of  will  in  ecclesiastical  court,  397. 
revocation  of  probate,  proof  of,  39S. 
examined  copy  of  lost  probate,  evidence,  397. 
exemplification  of  probate,  397. 
copy  of  leger-book,  398. 

PROCESS 

*  of  eubpcEna.     See  tit.  Subpcena. 

PROCHEIN  AMY. 

not  competent,  in  suit  by  infant,  59. 

PROCLAMATION, 

proved  by  Gazette,  407. 

for  discovery  of  offences,  evidence  of  the  facts,  407. 

of  fine,  how  proved,  3S9. 

PRODUCTION  OF  WRITINGS.     See  also  tit.  Inspection. 
process  for  compelling,  3. 
party  when  compellable  to  produce,  435. 
party  when  excused,  436. 

where  two  parties  executed,  each  of  whom  had  a  part,  438. 
notice  for,  439. 

proof  of  notice  to  produce,  445. 

when  dispensed  with,  441. 

rule  as  to  proof,  449. 

where  party  claims  under  instrument,  449 

in  actions  between  landlord  and  tenant,  451. 

against  sheriff,  451. 

deed  produced,  under  notice,  how  to  be  proved,  448. 

exceptions  to  general  rule,  449. 

how  much  to  be  read,  451 . 

rule  of  court  for,  to  get  the  writing  stamped,  437- 

judge's  order  for,  in  action  on  policy,  438. 

PROFERT 

of  deed,  when  dispensed  with,  457,  457,  n. 

bargain  and    sale  pleaded    with, — copy  of  enrolment  may  be  shown, 
when,  461. 

PROMISSORY  NOTE, 

alteration  of,  when  makes  new  stamps  necessary,  512. 

not  evidence  under  the  money  counts,  when  particular  includes  only 

the  demand  on  note,  190. 
consideration,  232. 


INDEX  TO  VOL.  I.  669 

PROOF.     See  tit.  Evidence,  Presumptive,  Witness. 

PROPERTY.     See  tit.     Trespass,    Trover,  Src. 

presumptive  evidence  of,  from  possession,  160. 

PROSECUTOR, 

competent  witness,  110,  120. 

though  entitled  to  reward  or  penally,  12G. 

general  rule,   120. 

exception  in  case  of  forgery,  121. 

in  case  of  forgery,  not  competent,  when,  121. 

party  injured  not  allowed  to  prove  any  material  fact,  121. 

competent  if  not  liable  on  forged  insrument,   122. 

as  cashier  of  Bank  of  England,  122. 

or  where  the  banker  has  not  debited  the  party,  122. 

or  after  release,  122. 

in  civil  suit,  if  incidental  or  collateral  question  arise  as  to  the  gen- 
uineness of  a  written  instrument,  the  party    is  competent,  123. 
expences  of,  allowed  under  stat.  7  G.  4.  c.  64.,  11. 
agent  of,  how  far  his  conduct  is  examinable  by  defendant  in  a  prose- 
cution, 103. 

PROTEST, 

of  bill  of  exchange,  382. 

PROVISO  IN  STATUTE, 

when  evidence  under  general  issue,  320. 

PUBLIC  BOOKS.     See  til.  Books. 

entry  in,  proved  by  examined  copy,  424. 
inspection  of,  430,  431. 
who  may  inspect,  431. 

PUBLIC  RIGHTS, 

proof  of,  by  hearsay,  248. 

verdict,  evidence  of,  though  between  other  parties,  327. 

PUNISHMENT, 

suffering  of,  restores  competency,  when,  33. 

PURGATION, 

ancient  doctrine  of,  31. 

its  effect  in  restoring  competency,  32. 

PUTTING  OFF, 

of  trial,  for  absence  for  witness,  16. 


Q 


QUAKERS,  . 

history  of  statutes  relating  to,  23. 
may  afhrm  in  civil  cases,  25. 

not  in  criminal  cases,  25. 

what  criminal  cases  within  the  rule,  26. 

in  criminal  cases,  in  their  own  defence,  26. 


670  INDEX  TO  VOL.  I. 

QUALIFICATON, 

of  plaintiff,  when  admitted  by  defendant,  228. 
need  not  be  disproved  by  plaintifl'in  action  on  game  laws,  198. 
or  in  proceedings  on  conviction  beforo  magistrate,  198. 

aUARE  IMPEDIT, 

hearsay  not  evidence  of  presentation,  252,  n. 

QUARTER  SESSIONS, 

judgment  of,  see  Judgment. 

aUI  TAM  ACTION.     See  tit.  Penaltiea. 
QUIT  RENT, 

release  of,  not  presumed  after  twenty  years'  non-payment,  160. 


RAPE, 


on  indictment  for,  the  woman   not   compellable  to  answer  as  to  hor 
criminal  connection  with  other  men,  176. 
such  evidence  not  admissible,  176. 
her  general  bad  character  for  want  of  chastity  may  be  shown,  176. 

or  her  previous  connection  with  the  prisoner,  176. 
the  account  given  by  her,  immediately  after  the  injury,  when  and  how 
far  admissible,  233. 

not  evidence  as  to  the  truth  of  the  account,  233. 
nor  in  confirmation  of  her  evidence,  233- 


RATE, 


btok  for  copies  of,  how  kept,  413. 

in  any  matter  relative  to,  persons  rated  or  filling  offices  are  competent, 

128. 
payment  of,  when  evidence  of  occupation,  256. 

RATED  INHABITANTS, 

competent,  on  question  whether  lands  are  vested  in  overseers,  128. 

by  St.  54  G.  3.  c.  170,  in  any  matter  concerning  rates, 
boundaries,  settlements,  &c.,  128. 
declarations  by,  evidence  against  their  parish,  when,  129. 
whether  compellable  to  give  evidence  against  their  parish,  on  question 
of  settlement,  72,  129. 


READING 

REASON, 
RECEIPT 


of  will  to  testator,  in   presence  of  the  witnesses,  not  necessary,  when, 
498. 

defect  of,  disqualifies  witness,  18. 

» 

not  conclusive  on  party  signing,  108. 

may  show  that  the  money  has  not  been  received,  108. 

or  that  he  gave  the  receipt  under  misrepresentation,  IDS- 


INDEX  TO  VOL.  L 

RECEIFT— continued. 

evidence  of  payment,  526. 

for  rent,  presumptive  evidence  of  former  rents  being  paid,  159. 

'*  in  full   of  all  demands,"  bar   to  action  of  assumpsit  for  goods  sold 

159,  n. 
admission  of  receipt  of  premium  in  a  policy    of  insurance,   conclusive 

evidence  of  payment  between  assured  and  underwriter,  159,  n. 
parol  eviderjce  admissible,  though  receipt  given,  220. 
of  principal,  when  evidence  against  surety,  258. 
old  receipts  of  rents,  when  evidence,  253,  254. 

entries  by  deceased  person,  of  receipt  of  rent,  not  evidence  for  party 
claiming  under  deceased,    to    show    that  lands  belonged  to  his  an- 
cestor, 253. 
entry  of,  by  deceased  collector,  proof  of  authenticity,  259. 
death  of  party,  when  to  be  shown,  259,  261. 
situation  of  party,  when  to  be  shown,  259. 
entry  of,  by  steward,  255. 

by  bailiff,    255. 
of  payment  in  lieu  of  tithes,  proper  custody  of,  481    48  2. 
endorsed  on  deed,  not  conclusive,  549. 
of  goods  by  carrier,  stamp,  5-5. 
evidence  of  consideration  on  which  money    paid,  if  stated  in  receipt, 

526. 
unstamped,  may  be  used  as  a  memorandum,  513. 

RECEIVER, 

entry  by,  of  receipt  of  rents,  253,  254. 
proof  of  entry,  259. 

RECITAL 

of  deed  in  another  deed,  when  evidence,  457. 
in  family  deeds,  evidence  of/pedigrec,  239. 
in  deed  when  secondary  evidence,  457. 

RECOGNIZANCE 

to  appear  and  give  evidence,  8. 

RECORD, 

what,  316,  383. 

when  complete,  386. 

effect  of,  as  evidence,  316. 

conclusive  of  what,  317. 

not  to  be  contradicted,  316. 

evidence  as  to  entry  of  verdict  by  mistake,  316. 

not  conclusive  as  to  facts  not  traversable,  317, 

nor  as  to  time  of  offence,  317. 
keeper  of  records  may  speak  as  to  their  condition,  317. 
inspection  of  record,  425. 

in  case  of  felony,  425- 

in  case  of  misdemeanor,  426. 


671 


672  INDEX  TO  VOL.  I. 

RECORD— con/jnuc./ 

in  issue,  how  proved,  384. 
copy  of,  under  seal,  384,  385. 

not  under  seal,  386. 
enrolment  of,  387,  388. 
•  copy  of,  by  chirography,  387. 

by  officer  authorized ,  387. 
by  officer  unauthorized,  388. 
nul  tiel  record,  proof,  384,  385. 
proof  of  record  by  exemplification,  385. 
by  examined  copy,  386. 
o  iice  copy  of  record,  387. 
in  case  of  ancient  record  lost,  386,  387. 
copy  of  judgment  signed  by  clerk   of  treasury,  not  evi 
dence,  389. 
admissions  on  record,  in  the  action,  need  not  be  proved,  170. 
variance  in  proof  of  record,  212.     See  tit.  Variance, 
of  nisi  prius,  389. 
RECOVERY, 

deed  to  make  tenant  to  the  writ  of  entry,  when  evidence  of,  392. 
of  lands  in  ancient  demesne,  when  proved  by  copy,  386. 
in  former  suit,  evidence  under  non-assumpsit,  335. 

RECTOR, 

death  of,  when  to  be  proved,  to  make  his  books  evidence,  261. 

(See  Vicar,  Receipt,  Tithes.) 
books  of  deceased,  when  evidence  for  his  successor,  260. 

of  deceased  lessee  of  the  rectory,  261.     (See  tit.  Parson.) 
proper  custody  of,  481. 
RE-EXAMINATION.     See   Examination. 

of  witness,  as  to  former  statements  with  party  to  the  suit,  305. 

with  a  third  person,  305. 


REGISTER 


of  parish,  408,  410. 

regulations  for  keeping,  409. 

entry  in,  proof  of  marria  ge,  409,  410. 
inspection  of  entry  in,  as  to  modus,  261. 
of  Fleet  prison,  410. 
of  foreign  chapel,  of  marriages,  411. 
of  colonies,  411. 
of  ship, 

effect  of,  411. 

not  evidence  of  title,  411. 

REGISTRY 

of  deed,  proved  by  attested  copy  of  memorial,  218,  288,  464. 

RELEASE.    See  tit.    Witness. 

of  interest,  restores  competency  of  witness,  133. 


INDEX  TO  VOL.  I.  673 

R  FXEASE—coniinued. 

general  release,  134. 

by  surety,  134. 

to  partner,  134 

of  legacy,  133. 

of  quit-rents,  not  presumed  when,  160. 

by  drawer  to  acceptor  of  bill,  134. 

guardian,  in  suit  against  a  minor,  insufficient,  134. 

co-obligee,  134. 
to  co-obligor,  134. 
from  residuary  legatee,  136. 
on  trial  for  forgery,  135. 
unnecessary,  1.  where  release  refused,  136. 

2.  where  interest  acquired  fraudulently,  137. 

3.  where  witness  indifferent,  140. 

4.  in  case   servants,   carriers,  or  agents,  proving   pay- 
ment of  money  on  delivery  of  goods,  &c.,  129,  130. 

RELATIONSHIP.     See  Kindred. 

RELEVANCY 

of  proof,  272. 

RELIGIOUS  PRINCIPLE, 

defect  of,  when  a  ground  of  incompetency,  23. 
examination  as  to  religious  opinions,  24. 

REMAINDER, 

one  taking  an  estate  in,  not  competent  to  speak  to  the  tillo,  65. 
may  use  a  verdict  gained  by  another,  when,  325. 

REMAINDER-MAN 

an  incompetent  witness  respecting  title  to  land,  65. 

REMOVAL, 

order  of,  see  Judgment  of  Quarter  Sessions,  or  Q.  S. 

RENT-ROLL, 

ancient,  when  evidence,  252. 

REPLEVIN, 

in  action  of,  proof  of  execution  of  lease  by  power  of  attorney,  104. 

replevin  bond,  proof  of,  when  produced  under  notice,  451. 

produced    by  sheriff,  takan  to  be   duly   executed  as  against 
him,  451. 

defendant  avows  for  common  under  a  lease,  plaintiff  traverses  the 
lease,  inodo  et  forma;  variance  as  to  date  of  demise,  when 
immaterial,  201. 

only  part  of  the  cattle  proved  to  be  levant  and  couchant,  not  suf- 
ficient, 211. 

judgment  in,  a  proof  of  tenancy,  332. 

REPUTATION.     Seo  tit.  Hearsay. 

common,  evidence  of  public  rights,  248. 

Vol.   I.  85 


674  INDEX  'IX)  VOL.  I. 

REPUTATION  —continued. 

as  to  boundaries,  249. 

cusloii)!!,  249. 
post  litem  motam,  not  evidence,  241. 
of  parlicular  facts,  not  evidence,  2.51. 
not  evidence  of  private  rights,  251. 
not  of  prescriptive  rights,  251. 
not  to  prove  presentation,  252,  n. 
RESCUE, 

slieriff  's  return  of,  391. 
RES  GESTA, 

hearsay,  part  of,  when  evidence,  231. 

in  cas9  of  trader  absenting   himself  from  Iiome,  to  show    motive 
of  his  absence,  231. 
letters  of  payee  to  maker  of  note,    contemporaneous   with  making  of 

note,  to  prove  consideration,  232. 
account   given  by   persons,  as  to  their   state,  on  enquiries  of  medical 

men,  233. 
complaint  of  woman  in  case  of  rape,  when  received,  233. 
in   crirn-    con .,  declarations  of  wife  at   the   time  of  elopement,    as  to 
caus3  of  her  conduct,  234. 
but  not  collateral   declarations  respecting   a  matter  which  hap- 
pened at  another  time,  233. 
acts  done,  or  things  said,  by  a  third    person,  when  admissible   as  part 
of  res  gcsta,  234. 

RES  INTER  ALIOS  ACTA.  331,  361. 
RESIDUARY  LEGATEE, 

when  an  incompetent  witness,  63. 

RESIGNATION, 

evidence  of,  by  member  of  corporation,  136. 

RESOLUTION 

of  either  house  of  parliament,  not   evidence  of  u  fact   therein    stated, 

406. 
read  and  adopted  at  a  public   meeting,  may    be  proved  by  parol   evi- 
dence, or  by  copy  received  from  defendant,  221,  222, 

RETAINER 

book  of  counsel,  142. 

RETURN 

of  sherifTon  writ, 

when  evidence  of  the  facts,  391. 

not  evidence  of  payment  to  judgment  creditor,  391. 

REVERSAL 

of  judgment  restores  competency,  31. 

REVERSIONER, 

in  action  by,  tenant  in  possession  competent,  49. 
verdict  for  or  against  lessee,  evidence  for  or  against,  325. 

REVOCATION 

of  probate  of  will,  how  proved,  398. 


REWARD, 


RIOT, 


INDEX  TO  VOL.  T.  (,75 

persons  entitled  to,  on  conviction,  not  incompetent,  129. 

cases  in  wliich  rewards  are  given,  120,  n. 

case  ill  which  tlie  rewards  have  been  taken  away,  119,  n. 

on  prosecution  for,  how  far  acls  done  by  the  niob  are  evidence  against 

any  of  the  rioters,  98,  234. 
wliat  tiie  defendant  said  before  lie  went  to  place  of  riot,  not  evidence 

for  him,  1S2. 
proof  of  other  acts  of  prisoner,  how  far  admissible,  181. 

ROAD.     See  tit.  Boundary. 

on  indictment  for  not  repairing,  verdict  of  guilty  is    conclusive  against 
the  parish,. 3.31. 
its  eflect,  in  case  of  a  parish  consisting  of  several  dis- 
tricts, 331. 
defendants  may  show,  under   plea  of  not  guilty,  thai 
the  parish  has    been  exempted    from  repairing,  by 
act  of  parliament,  320. 
inhabitants  of  parish  not  competent,  127. 
on  prosecution    for  oflences  again.st   the  highway  act,  inhabitants  are 

competent,  127. 
on  a  question  whether  the   occupier  of  particular  land    is  liable  to  re- 
pair, an  award    between  a  former  occupier  and   the  township  is  not 
evidence,  246. 

ROBBERY, 

on  indictment  for,  prisoner  may  be  convicted  of  simple  larceny,  203. 

See  tit.  Indictment. 
variance,  207. 
may  be  proved  by  party  robbed,  in  action  against  the  hundred,  70. 

so  also  the  amount  of  property  robbed,  70. 
dying  declarations  not  evidence  in  prosecution,  237. 

ROLLS.     See  Ancient   Writings. 

of  manor  court,  evidence  between  the  landlord  and  his  tenants,  417. 

of  customary  descent,  417,  418. 

of  customary  tenure,  418. 

of  right  of  fishery,  253. 
inspection  of,  429. 
proof  of,  424. 

RULE  OF  COURT, 

signed  by  proper  officer,  good  evidence,  383. 


SALE 


of  goods. — See  Agreement. 

agreement  for,  exempt  from  stamp,  when,  527. 


676  INDEX  TO  VOL.  I. 

SALE — continued. 

sale  of  growing  crops,  when  exempt  from  stamp,  629. 
agreement  for,  when  varied  by  parol,  560. 

as  to  time  of  delivery,  560. 
/  as  to  mode  of  delivery,  560. 

parol  evidence  of  agency,  561. 

to  prove   variation  in  the  quantity  of  goods  to  be  de- 
livered, 560. 
by  aactioD,  not  affected  by  verbal  declarations  of  auctioneer,  560. 
See  Auctioji,  Auctioneer. 


SANITY, 


SEAL, 


SEALING 


opinion  of  medical  men  as  to,  290. 


copies  of  records  under,  384. 

of  the  King  of  public  courts  of  justice,  need  not  to  be  proved,  385. 

of  ecclesiastical  courts,  on  probate,  need  not  to  be  proved,  397. 

of  private  or  foreign  courts,  how  proved,  385,  399. 

of  colonial  cour's,  399. 

of  corporations,   how  proved,  386. 


essential  to  the  validity  of  deed,  467. 

may  be  done  by  several  persons,  with  one  seal,  when,  467,  471. 


SEAMEN, 

in  action   for  wages,  are  not  obliged  to  produce  the  contract,  443. 
defendant  compellable  to  produce  ship's  articles,  443. 
memorandum  for  wages  of,  when  exempt  from  stamp  duty,  530. 

SECONDARY  EVIDENCE 

not  to  be  admitted,  when  primary  is  to  be  had,  452. 
meaning  and  extent  of  this  rule,  218,  219,  452. 
degree  of,  458. 
of  writings,  when  admitted,  451. 

where  instrument  in  possession  of  adverse  party,  440,  443. 

after  notice  to  produce,  452. 

what  admissible,  457,  458,  459. 

of  deed,   or  agreement,    admitted    without   proof  of  execution, 

when   the   original    is  not   produced   by  the  other  party,  after 

notice,  452. 
admitted  without  a  stamp,  452. 
party,  after  refusing  to  produce,  cannot  retract,  452. 
of  power   of  attorney,  question   as   to  its  admissibility,    in  Lord 

Melville's  case,  452,  459,  n.- 
of  contents  of  letter,  458. 
of  appointment  of  overseer,  45  J 


INDEX  TO  VOL.  I.  g77 

SECONDARY  EVIDENCE— coniiwueci. 

of  endowment  of  vicarage,  459. 
copy  of  enrolment,  461. 
copy  of  deed,  457. 
recital  in  deed,  457. 
rnem.)randum  book,  458. 

See  Loss,  proof  of. 

SECRECY, 

oath  of  office  as  to,  how  understood,  145. 
privileged  communications,  284. 

SECRETARY  OF  BANKRUPT, 

copy  of  writings  in  his  office  evidence,  415. 

SECRETARY  OF  STATE, 

order  of,  for  bringing  up  a  prisoner  of  war  as  witness,  6. 
register  in  his  office  for  recording  licences,  219. 

SECRETARY  AT  WAR, 

certificate  of,  382. 

SEISIN 

of  devisor,  proved  by  declaration  of  deceased  occupier,  258. 

SELLER 

of  property,  when  competent  to  prove  title  of  buyer,  48. 

SENTENCE  OF  COURTS.     See  tit.  Judgment. 

SERVANT 

competent,  in  action  by  his  master,  to  prove  delivery  of  goods,  &c., 
129. 

incompetent  to  prove  acts  done  by  him  out  of  the  course  of  his  duty, 
when,  130. 

incompetent  to  disprove  his  own  negligence  in  action  against  his  mas- 
ter, 56,  131. 

incompetent,  in  action,  to  recover  money  illegally  spent  by  him,  131. 

SERVICE 

o^sxxh'pcBndL  ad  testificandum,  A. 

in  criminal  cases,  8. 

in  any  part  of  the  United  Kingdom,  9. 

SESSIONS, 

order  of,  confirming  order  of  removal,  conclusive  as  to  all  parishes,  330. 
discharging,  conclusive  only  that  the  settlement  was  not  with 
the  respondents,  329. 

SETTLEMENT 

by  purchase  of  estate, 

parol  evidence  not  admitted  to  show  that  the  purchaser  agreed  to 

pay  more  than  30/.  though  the  deed  expresses  less,  550. 
or  that  less  was  paid  than  is  expressed,  551. 


(^78  INDEX  TO  VOL.  I. 

SETTLEMENT— co/!/;nuc(i. 

examination  of  pauper  concerning,  not  evidence  after  his  death,     STff 

SHERIFF.     See  tit.  Undersheriff. 

action  against,  bailiff  not  competent  to  prove  endeavor  to  .irrest,  59. 
variance  in  omitting  the  taking  of  wife  in  execution,  201. 
endorsement  of  writ  evidence  against,  391,  n. 
.return  of,  upon  vvrit,  evidence  of  vvliat,  391. 
replevin  bond  produced  by,  admitted  without  proof  of  execution, 

451. 
inquisition  by,  375. 
in  action  against  for  taking  goods  without  paying  arrears  of  rent,  terms 
of  the  iiolding,  if  set  out,  must  be  proved  as  averred,  206. 
landlord  not  competent  for  defendant,  56. 
admission  by  undcrsherifT,  106. 

SHIP.     See  tit.   Captain,  Policy  of  Insurance. 

articles  of,  to  be  produced  by  defendant,  in  action  for  seamen's  wages, 

337. 
owner  of,  his  declarations  are  evidence  in  action  for  freight,  92. 
property  in,  proof  of,  412. 
possession,  acting  as  owner,  412. 
registration,  effect  of,  411. 
register  of,  when  evidence  of  want  of  title,  411. 

not  evidence  of  property,  unless  recognised,  though   necessary  to 

complete  a  transfer  of  the  property,  411. 
conclusive,  that  persons  not  named  therein  are  not  owners,    411. 
capture  of,  proved  by  book  at  Lloyd's,  414, 

by  sentence  af  admiralty  and  foriegn  courts,  346,  347. 
opinion  of  ship-builders  as  to  sea-worthiness,  290. 

SHIP-BUILDER, 

evidence  of,  as  to  sea-wortliiue.ss  of  ship,  290. 

SHOP-BOOK, 

entry  in,  by  deceased  shopman,  evidence  of  delivery  of  goods,  264. 

by  the  master,  not  evidence,  266. 

may  be  used  as  a  memorandum,  264. 

by  clerk  living  abroad,  not  evidence,  264. 

by  servant,  stating  terms  of  agreement,  not  evidence,  265. 
open  to  customer, — effect  of,  as  a  bill  delivered,  265. 
admissibility  of,  by  st.  7  Jac.  c.  12,  266. 

SHOPMAN, 

entry  by,  in  tradesman's  book,  264.     See  tit.  Shop-book. 


INDEX  TO  VOL.  I.  579 


SIGNING 


of  deed,  466. 

not  essential  at  common  law,  466. 
attestation  of,  under  powei-,  466. 
of  will,  497. 

in  any  part  of  will,    497. 

of  part,  intending  to  sign  tiio  wliolo,  497. 

by  mark,  497. 

by  stamped  name,  497. 

by  seal,  insufficient,  497. 

when  testator  is  blind,  498. 

SLANDER.     See  tit.  Defamation. 
action  for, 

proof  of  the  slanderous  words,  201. 

SOLDIER, 

e.xamination  of,  under  mutiny  act,  when  evidence,  377. 

attested  copy  of,  given  to  commanding   officer,  evidence, 
377. 

SOLICITOR.     See  tit.  ^//orwey.   Counsel. 

not  allowed  to  give   evidence   of  professional    communications  of  liis 

client,  140,  141. 
cannot  produce  a  deed,  confidentially  deposited  with    him,  against  the 
depositor  or  any  claiming  under  liim,  141. 
same  rule  in  criminal  cases,  142. 
rule  confined  exclusively  to  professional  advisers,  144. 

person  not  being,  though  considered  as  such,  not  within  the  rule, 
145. 
may  give  evidence  as  to  the  execution  of  a  deed,  146. 
or  erasure  of  writing,  146. 
or   swearing    on   answer   in     Chancery, 
146. 
proposition  made  by  the  si'licilor  of  one  party  to  the    other  party   can- 
not be  proved  by  the  solicitor,  145. 
may  be  pravcd  by  any  other  person  present,  145. 

SOLVIT  AT)  DTE.M, 

payment  before  the  day  n)ay  be  proved,  200. 
presumption  of  payment  197. 

SON  ASSAULT  DEMESNE, 

proof  of  time  of  the  assault,  215. 

SPECIAL  CASE, 

is  evidence  of  facls  contained,  106. 

SPECIFIC  PERFORMANCE, 

on  bill  for,  defendant  may  show   that   the    agreement   has    been  dis- 
,       charged,  568. 


680  INDEX  TO  VOL.  I. 

SPECIFIC  PERFORMANCE— conh««e(i. 

or  that  it  is  difTerent  from  that  intended,  569. 
or  that  they  afterwards  agreed  to  a  variation,  569. 
plaintitT  may  show  tlie  omission  of  a   term  by   fraud,  671. 
whether  he  may  show  it  by  mistake  or  surprise,  572. 
cannot  vary  agreement  by   parol   evidence,  so  as  to   have 

it  executed  in  its  varied  form,  573. 
part  performance  of  agreement  for  land,  what,  575. 

SPECIMEN  BOOKS, 

transcribed  by  excise-officer  from  specimen  papers,    when  evidence,    415. 


SPEED, 


Chronicle  of,  when  evidence,  423. 


STAMP, 


contents  of  unstamped  paper  cannot  be  shown,   if  stamp  necessary, 

504. 
unstamped  receipt  m<iy  he  shown  to  a  witness  to   refresh  his  memory, 

505,  518. 
after  payment  of  money  into  court,  want  of  stamp  no  objection,  524. 
or  after  admission,  by  plea  of  authenticity  of  the  writing,  505. 
other  proof  of  the  transaction,   besides   the  writing   when   admissible, 

504. 
fact  of  payment  may  be  shown,  if  receipt  unstamped,  504. 
unstamped  receipt,  used  as  a    memorandum,  or  as  confirmatory,  518. 
agreement  admitted  on  the  record,  need  not  be  stamped,  505. 
in  action  on  note    unstamped,  when   plaintiff"  may   recover  on   other 

counts,  505. 
foreign  instrument  to  be  stamped  according  to  the  law  of  the  country, 

505. 

bill  incipient  here,  completed  out  of  the  kingdom,  506. 
of  proper  value  and  denomination,  506. 

receipt  stamp  not  sufficient  for  promissory  note,  506. 

articles  of  agreement   under  seal  to  bo    stamped   as  a  deed,    506. 

agreement   for  house,  and   also  for  goods   in  it,  to  be  stamped  as  a 

lease,  507, 
value  being  greater  than   the  true  stamp  is   not   material,    if  the  de- 
nomination right,  507. 

where  the  denomination  is  difTerent,  but  of  equal 
or  greater  value,  commissioners  may  re-stamp, 
when,  507. 


INDEX  TO  VOL.  I.  681 

STAMP — continued. 

several  stamps  on  one  instrument,  when  necessary,  503 — 511. 
composition  deed,  508. 
adini.ssion  of  burgesses,  509 
agreements  for  letting,  511. 
parts  of  a  co     eyance,  509. 
new  stamp,  on  alteration  of  instrument,  when  necessary,  511. 
on  bill  of  exchange  or  promissory  note,  512,  516. 
on  policy  of  insurance,  513,  517. 
alteration  as  to  time  of  sailing,  514. 
as  to  property  insured,  514. 
as  to  sea-worthiness,  514. 
alteration  without  consent  of  all  parties,  515. 
by  consent,  to  correct  mistake,  515. 
unstamped  instrument,  evidence  for  collateral  purposes,  when,  518. 
in  action  for  penalty  for  illegal  insurance,  518. 

for  bribery  at  election,  518 
unstainpcd  paper,  as  a  memorandum,  518. 
as  secondary  evidence,  519. 
as  confirmatory  evidence,  518. 
unstamped  agreement  may  be  inspected  to  ascertain 
the  time  with  reference  to  a  subsequent  agreement, 
519. 
unstamped   agreement    may  be  inspected  to  see  the 

nature  of  the  hand -writing,  519. 
unstamped  instrument  may  be  recovered  in  trover,  519. 
unstamped    instrument,  evidence  in    prosecution  for 

forgery,  520. 
draft,  unstamped,  when  admissible  on  indictment  for 
secreting  a  letter  containing,  &c.  under'  stat.  7  G. 
3,  c.  50,  s,  1,  521. 
unstamped     instrument    may   be   inspected    to   see 
whether  it  applies  to  goods  which  are  the  subject  of 
the  action,  519. 
unstamped  instrument   not   admissible  as  receipt   in 

indictment  for  embezzlement,  552. 
on  receipt  of  goods  by  carrier,  525. 
instrument  in  possession  of  adverse  party,  presumed 
to  be  stamped,  522. 
stamp  not  required,  on  receipt  for  price  of  horse,  containing  warranty 

of  soundness,  528. 
exception  in  stamp  act,  respecting  instruments  for  sale  of  goods  be- 

Vol.  I.  86 


682  INDEX  TO  VOI-.  I. 

STAMP— continued. 

tween  merchants  within   certain  distances,  confied    to  cases  where 
goods  the  primary  object  of  the  contract,  528. 

policy  of  insurance  unstamped,  not  evidence  on  indictment  for 

burning,  &c.  with  intent,  &c.  521. 
party  when  compellable  to  produce  writings    to  be  stamped, 

previous  to  trial,  437- 
lost  instrument  presumed  to  be  stamped,  when,  523. 
want  of  stamp,  when  to  be  repaired,  and  how,  523. 
'  want  of  stamp  not  be  objected  to,  after  payment  of  money 

into  court,  524. 
or  after  plea  admitting  letters  of  administration,  524. 
agreements,  what  to  be  stamped,  524. 

minute  of  agreement  by  auctioneer,  525. 
written  contract  of  marriage  need  not,  525. 
fresh  item,  addsd,  525. 
receipt,  properly  stamped  as  such,  admissible, 

though  it  contain  an  agreement,  525. 
cognovit  need  not  be  stamped,  526. 
agreements  exempted  from  stamp,  what,  526. 

1.  memorandum  of  assurance,  526. 

2.  memorandum  for  granting  lease,  526. 

agreement,  when  a  present  demise,  526. 

3.  memorandum  for  hire  of  laborer,  &c.  527. 

agreement  for  assignment  of  apprentice, 
not  exempted,  527- 

4.  memorandum    for   or   relating   to   sale   of 

goods,  527. 
agreement  to  take  a  share  of  goods,  &c. 

527. 
agreement  to    indemnify  on  re-sale,  &o. 

527. 
guarantee  for  payment  of  goods,  527. 
agreement  for  money  on  pledge,  of  goods, 

528. 
agreement  for  sale  of  goods,  to  be  made, 

528. 


INDEX  TO  VOL.  I. 

STAMP— continued. 

agreement  for  sale  of  crops,  529. 
metnorandnm   between   master  and  mariners 

of  ship,  530. 
letters  containing   agreement   respecting  mer- 
chandize between  merchants,  530. 

STATUTE  7  Geo.  4.  c.  64, 

reversal  of  judgment  on  indictment,  217. 
costs  in  misdemeanors,  12. 

STATUTE, 

public  act,  317 

preamble  of,  318. 

rule  as  to  pleading,  318. 
private  act, 

proof  of,  383. 
penal  act,  action  upon,  319. 

evidence  for  defendant,  under   nil  debet,  319. 

proviso  containing  exemption  may  be   shown,  320. 

STATUTE  OF  FRAUDS. 

contracts  within,  parol  evidence,  when  admissible,  559. 
discharge  of,  bv  parol,  563. 
parol  evidence  of  agency,   561. 
of  time  of  delivery  of  goods,  561. 
proof  of  collateral  facts,  562. 

STEALING.       b'ee  tit.  Larceny. 

STEWARD, 

entiy  by  deceased,  as  to  receipt  of  money,  255. 


683 


STOCK, 


of  manor,  competent  as  to  custom,  130,  261. 


transfer  of,  proved  by  bank  books,  414. 


SUBPOENA.  .  See  tit.  Witness, 

ad  iesiificandum,  2. 
duces  tecum,  3,  436. 

production  of  writings  under,  3. 

what  writings  the  party  is  compellable  to  produce,  436. 
writings  secreted  in  fraud  of,  442. 
"^  service  of,  4. 

how  many  may  be  put  in  one  writ,  4. 
ticket,  4. 
on  the  person,  4. 
how  long   before  the  trial,  1. 
on  married  woman,  4. 
in  case  of  remanel,  4 
in  criminal  cases,  8. 


6ij4  INDRX  TO  VOL.  I. 

SVBPCES  A— continued. 

in  different  parts  of  the  kingdom,  9. 
process,  in  case  witness  refuse  to  attend,  8. 

SUBSCRIBING  WITNESS 

to  deed,  464. 

to  will,  499. 

proof  of  writings  by,  464. 

what  excuses  the  absence  of  such  witness,  474. 

cannot  be  objected  to,  as  interested,  by  one   who  asked  him  to  attest, 

knowing  his  situation,  466. 
liand-wriling  of,  when  proved,   473,  475 
may  impeach  execution,  41,  308. 

SUBSTANCE 

of  issue  to  be  proved,  200 
examples, 

in  action  of  waste,  sufficient  to  prove  that  defendant  cut  a  less 

number  of  trees,  201. 
in  action  on  simple  contract,  plaintiff  may   prove   less  than  the 

writ  demands,  201. 
in    action  against  the  sheriff,  plaintiff  declares  that  he  had  J. 

S.  and  his  wife   in  execution,  proof  that  he  had  J.  S.  alone 

is  sufficient,  201. 
in  action  for  slander,  rule  as  to  the  proof  of  the  words,  201. 
averment  that  the  cattle   (damage-feasant)  were   levant  and 

couchant,  is  not  proved   by  showing  that  part  of  them  were 

BO,  201. 
of  issue  in  plea  of  tender,  202. 
of  solvii  post  diem,  200. 
plaintiff  may  recover,  though    he  prove  a  more   ample   right 

than  he  claims,  211. 
proof  th;;t  A.  was  churchwarden,  not  sufficient  on  issue  whe- 
ther A.  and  B.  were  churchwardens,  202. 
averment,  that  plaintiff  was  constable  of  a  particular  parish,  is 

not  supported  by  proof,  that  he   was  sworn  in,  to  serve  for 

a  liberty  of  which  the  parish  was  only  a  part,  202. 
averments,  when  immaterial,  205. 
^  averments,  merely  matter  of  inducement,  need   not  be  strictly 

proved,  206. 
contracts  to  be  truly  stated,  and  proved  as  stated,  207. 
(other  examples  in  the  several  actions  in  Vol.  11.) 
examples  in  criminal  cases,  207. 

SURETIES, 

entry  in  account  by  principal,  when  evidence  against,  268. 
SURGEON, 

memorandum  of,  evidence  of  time  of  birth,  241. 


INDEX  TO  VOL.   I.  ggc 

SURPRISE, 

whether  a  ground  for  allowing  parol  evidence  to  vary  a  written  agree- 
ment, 572,  573. 

SURRENDER  OF  COPYHOLD, 

mistake  in,  may  be  rectified  by  parol  evidence,  540. 
terms  of,  explained  by  possession,  543. 

SURROGATE, 

proof  of  acting,  evidence  of  appointment,  226, 

SURVEY-     See  tit.  Terrier. 
public,  404. 

ecclesiastical,  admissible,  though  commission  not  found,  405. 
of  benefices  by  Pope  Nicholas,  404. 

history  of,  444. 
of  religious  houses  previous  to  their  dissolution,  405. 
evidence  of,  what,  404. 
valor  beneficiorum  in  reign  of  H.  8,   404. 

takes  no  notice  of  a  modus,  405. 
in  time  of  the  commonwealth,  405. 

its  great  authority  in  questions  of  tithes,  405. 
of  the  king's  ports,  403. 

ancient  surveys  evidence,  without  proof  of  commission,  when,  405. 
of  manor  or  estate,  when  evidence,  254. 

SURVEYOR 

of  parish,  competent,  in  cases  relating  to  the  execution  of  the  highway 
act,  127. 

SWEARING.     See  Oath. 
form  of,  22. 
in  case  of  Jews,  22. 

Quakers,  23. 
Gentoos,  23. 
Mahometans,  23. 
examination  previous  to,  23. 


T 

TAXATION 

of  Pope  rs'icholas  evidojice,  when,  404. 

TENANCY, 

verdict  in  replevin,  evidence  o),  332. 

TENANT.     See  tit.  Ejectment,  Vol.  II. 

not  competent  to  prove  the  right  of  taking  ofF-going  crops,  67. 
not  competent  to  support  his  landlord's  title  in  ejectment,  56. 
sub-tenant,  when  competent,  49. 

competent  to  prove  damage  to  reversioner,  49. 

TENDER 

of  expences  to  witness,  6. 


G86 


TENDER- 


TENURE, 


TERRIER 


INDEX  TO  VOL.  I. 

-continued. 

in  case  of  service  of  subpoena  under  stat.  45  G.  3.  c.  92,  9  . 
not   necessary  in  criminal  cases,   12. 

necessary  to  witness  brought  before  coniniissioners  of  bankrupt,  14. 
plea  of,  and  demand  of  the  sum    pleaded    in  reply, — demand  of  that 
specific  sum  must  be  proved,  202. 

on  question  of,  in  a  manor — evidence  of  usage  in  other  manors    within 
the  same  district,  admissible,   173. 


of  manor,  evidence  of  boundary  or  tenure,  419. 
ecclesiastical,  what,  419. 

evidence  of  church-possessions,  419. 
in  questions  of  tithes,  419. 
for  parson,  when,   420. 
against  him,  when,  420. 
from  what  repository,  419,  420. 
by  whom  to  be  signed,  420. 
admissible,  though  not  signed  by  rector,  420. 
signed  by  inhabitants  of  a   parish,    evidence   of  a    farm-modus, 
though  the  persons  signing  are  not  shown  to   have    been    occu- 
piers, 420. 
not  evidence  unless  possession  satisfactorily  explained,  420. 

TESTATOR.      See  tit.  Will. 

must  sign  in  presence  of  witnesses,  493. 
witnesses  when  present,  499  . 


TICKET, 


TIME, 


TITHES, 


service  of,  for  subpoena,  3 

variance  in,  proof  of,  214, 
of  making  entry,  266. 

receipt  of,  what  admitted  by,  227. 

entry  by  deceased  rector,  evidence  of,  receipt  of,  when,  260. 

entry  in  steward's  book,  261. 

answer  of  occupier  of  land,  in  a  tithe  cause,  evidence  against  a  suc- 
ceeding occupier,  361. 

verdict  between  vicar  and  occupier,  evidence  between  vicar  and  suc- 
ceeding occupier,  325. 

modus  on  one  particular  farm  not  evidence  of  modus  on  another,  175. 
unless  some  connection  shown,  175. 

real  composition  for  tithes,  not  to  be  presumed  from  usage,  163. 


INDEX  TO  VOL.  I.  G87 

TITHES— cotUinued. 

in  suit  for,  in  the  ecclesiastical  court,  plea,  that  plaintifi"  had  not  read 

the  thirty-nine  articles,  to  be  proved  by  defendant,  195. 
book  of  collector  of,  proper  custody  of,  481. 
book  of  rector,  proper  custody  of,  481. 
occupier  not  competent  in  question  of  modus,  57 
declarations  of  deceased  occupier  as  to  modus,  250. 
See  tit.  Modus,  Prescription,  Survey,  Teirier,  Receipt- 
receipt  of,  evidence  of  parson's  title,  as  against  him,  227. 

TOLLS, 

collector  of,  proof  of,  227. 

hearsay,  evidence  of  right  to,  248. 

verdict,  evidence  of,  though  between  other  parties,  327. 

TRADESMAN, 

entry   in   his  books,  by    deceased    shopman,  evidence  of  delivery  of 

goods,  2(54. 
observation  on  this  sort  of  evidence,  263 
entry  by  tradesman  himself  not  evidence,  266. 
entry,  used  as  memorandum  by  shopman,  264. 
entry  by  clerk,  who  is  living,  though  abroad,  not  evidence,  264. 
entry  by  servant,  stating  terms  of  agreement,  not  evidence,  265. 
book,  open  to  customer, — effect  of  as  a  bill  delivered,  265- 
clause  in  stat.  7  J.  c.  12,  as  to  admissibility  of  shop-books,  266. 

TRANSFER 

of  stock,  bank-book  evidence  of,  414. 

TRANSPORTATION, 

prisoner  sentenced  to,  competent  after  suffering  sentence,  34. 
certificate  of  order  of  transportation,  381. 

TREATIES 

of  foreign  states,  how  proved,  402. 

TREASON, 

witness  disqualified  on  conviction  of,  28. 
confession,  evidence  in  case  of,  117. 

fvjnfession  of  overt  act,  if  offered  as  full  proof  of  such  overt  act,  must 
be  proved  by  two  witnesses,  117. 

may  be  proved  by  a  single   witness,  if  used  only  in  confirmation, 

118. 
or  if  evidence  only  of  some  collateral  fact,  118. 
or  if  the  overt  act  bo  an  attempt   against  the  life  or  person  of  the 
king,  118. 
no  overt  act  of  distinct  treason  to  be  proved,  unless  laid  in  the  indict- 
ment, 178. 
or  unless  it  conduce  to  the  proof  of  some  overt  act  laid,  178. 


688  INDEX  TO  VOL.   I. 

TREASON— conii  nned. 

overt  act  of  treason,  committed    in  a  foreign    country,   admissible   in 
corroboration,  178. 
so  also  prisoner's  declarations,  &c.,  178. 
two  witnesses,  when  necessary,  152,  153. 
not  as  to  collateral  facts,  154. 

nor  in  treason,  for  an  attempt  on  the  king's  person,  154. 
declarations  or  acts  by  co-con«pirators,    how   far    admissible,  94,  95. 
evidence  of  prisoner's  character,  on  trial  for  high  treason,  117. 

TRESPASS.     See  Co-tiespaitser. 

judgment  in,  a  bar  in  trover,  333. 

finding,  on  title,  in  trespass,  when  an  estoppel,  324. 

justification  by  process,  proof  of  fieri  facias,  390. 

when  judgment  to  be  proved,  391. 
competency  of  co-defendant  in,  73,  75. 
co-trespasser,  not  sued,  competent  for  plaintiff,  41. 


TRIAL, 


TROVER, 


TRUST, 
TRUSTEE, 


putting  off,  for  absence  of  witness,  16. 
motion  for,  16. 
notice  of,  17. 
affidavit,  17. 

when  it  cannot  be  put  off,  16. 
after  sham  plea,  16. 
other  causes,  16. 
consent  of  parties,  17. 
application  on  part  of  plaintiff,  16. 
proof  of  a  trial  having  taken  place,  231. 

judgment  in  trespass,  a  bar  in  trover,  333. 

unstamped  instrument  may  be  recovered  in,  519. 

effect  of  judgment  of  acquittal  in  the  exchequer,  as  to  legality  of  seiz- 
ure, 355. 

competency  of  co-defendant  in,  75. 

action  by  carrier,  for  box  delivered  by  mistake,  the  wife  of  the  owner 
of  the  box  seems  competent,  88. 

acti:>n  of,  for  bond,  notice  to  produce  bond  unnecessary,  441. 

witness  competent  for  defendant  to  prove  property  in  himself,  48. 

when  raised  in  equity  by  parol  evidence,  577. 

competency  of,  52. 

incompetent,  if  party  to  suit,  69. 

governors  of  hospital,  70. 

admission  by  one  of  several,  91,  n. 

of  turnpike  road,  a  competent  witness,  127. 


INDEX  TO  VOL.   I.  (^39 

TRUSTEE— continued. 


TURK 


writings  in    possession   of  party  ns   a    trustee — rule    for   producing, 
436. 


may  be  a  witness,  23. 
how  sworn,  23. 


UNDER-SHERIFF.     See  tit.  S/ienJ, 

proof  of  appointment  of,  from  acting,  226. 

declarations  by,  when  evidence  against  the  sheriff,  106. 
UNDERSTANDING, 

defect  of,  objection  to  witness,  when,  18. 
UNDER-TENANT 

may  prove  good  management  of  land,  49. 
UNDERWRITER 

competent  for  another  underwriter,  on  the  same  policy,  48. 

after  payment  of  Loss,  conditionally,  when  incompetent,  64,  138. 
UNLAWFUL   ASSEMBLY, 

conspiracy  in  collecting — what  facts   material  to  be  proved,  what    im- 
material, ISO. 

USAGE.     See  Possession,  Adverse  Possession. 
presumption  of  grant  from,  161. 
when  evidence  of  right  to  easements,  163. 
when  admissible  to  explain  ancient  charters,  540. 

to  explain  act  of  parliament,  541. 

to  explain  mercantile  contracts,  556. 

to  explain  private  deeds,  542,  543. 

to  explain  policy  of  insurance,  557. 
not  allowed  to  contradict  a  policy,  557. 

USE   AND  OCCUPATION, 

written   agreement  as  to  holding   unstamped,  cannot   be  supplied    by 

parol  evidence,  504. 
parol  evidence  to  supply  terms  of  agreement,  559. 
of  terms  of  tenancy,  221. 
USURY, 

in  action  for  penalties,  the  borrower  competent,  51. 

evidence  of  other  usurious  contracts  not  admissible,  273. 
may  be  given  in  evidence  under  non  assumpsit,  319. 
not  in  debt  on  bond,  unless  pleaded   319. 

UTTERING, 

indictment  for  uttering  forged  notes  or  bad  money — proof  of  other  nt- 

terings,  evidence  of  prisoner's     knowledge,  179. 
remark  on  such  evidence,  179. 

Vol.  1.  87 


690 


INDEX  TO  vol..  I. 


V. 


VALOR 

beneficionim,  404. 

VARIANCE, 

in  action  n";i>inst  sherifT,  ornissiion  of  wife  in  stating  writ  of  execution 

201. 
in  action  for  defamation,  201. 
in  proof  of  contract,  207. 

in    action  of  assumpsit, — in  action  of  tort,  vvlien  contract  necessary  to 
be  stated,  208. 

contract  in  tlie  alternative,  208. 

how  much  of  contract  to  be  stated,  209. 

when  all  the  parties  to  the  contract  are  not  sued,  209. 

when  all  parties  to  the  contract  do  not  sue,  210. 

when  all  parties  in  action  of  tort  not  joined,  210. 
in  proof  of  prescription,  210. 

possessory  right  of  common,  211. 

evidence  of  more  ample  right,  211. 
in  proof  of  deed,  211. 

deed  stated  in  substance,  212. 
in  proof  of  record,  212. 

when  record  only  described,  213. 

when   its   substance  set  out,  214. 
in  matters  of  description,  212. 
in  matters  of  substance,  213. 
in  direction  of  bill,  213. 
in  proof  of  time,  214. 
in  date   of  acquittal,  214. 
in  date  of  judgment,  214. 
^  in  proof  of  place,  215. 

in  place  in  criminal  matters,  217. 

in  place  of  venue,  216. 

in  assumpsit,  it  is   no  variance,  that  others  besides  the  defendant  are 

parties  to  the  contract,  209. 
but  if  others  ought  to  join  as  parties   in  the  action,  the  defendant  may 

take  advantage  of  it,  on  non  assumpsit,  210. 
in  action  of  tort,  it  is  not  a  variance  to  show  that  others  ought  to  have 
joined  in  suing,  210. 


VENDOR 


VENUE, 


of  goods,  when  competent,  49- 

competent  to  prove  title  of  vendee,  when,  48. 


when  the  place  is  only  for   venue,  a  variance  in  the  place  proved  not 

material,  216. 
on  indictment  for  felony  at  a  certain  place,  if  there  is  no  such  place 

in  the  county,  217. 
judgment  on  indictment  not  arrested  for  defect  of,  217. 


INDEX  TO  VOL.  I. 

VERDICT.     See  tit.  Judgment. 

admissible  in  evidence,  when,  ^2\. 

1.  considered  with  reference  to  the  parlies,  320. 

with  reference  to  the  subject  matter,  3.30. 
conclusive  between  same  parlies,  when,  322. 
effect  of,  as  evidence,  322. 
to  be  conclusive  must  be  pleaded,  322. 
who  the  same  parties,  323. 

evidence  against  one  of  several  partners,  when,  323. 
who  the  rjal  parties,  324. 
in  ejectment,  324. 
in  trespass,  324. 
evidence  between  privies  to  the  first  suit,  324. 
privy  in  blood,  324. 
f.rivy  in  estate,  325. 
privy  in  law,  325. 

decree  between  vicar   and    impropriator   evidence   be- 
tween their  successors,  325. 
verdict  between  vicar  and  occupier,  325. 
judgment  for  schoolmaster  of  hospital  evidence  for  suc- 
cessor, 325. 
judgment  of  ouster  in  quo  ivarranto,  325. 
not  evidence  against  a  stranger,  326. 
not  evidence  for  a  stranger,  when,  326. 
evidence  as  to  damages  recovered,  326. 
evidence  between  third  persons,  when,  327. 

verdict  as  to  customs,  tolls,  &c.,  327. 

judgment  of  courts  of  exclusive  jurisdiction,  328. 

judgment  of  quarter  sessions  in  appeals,  329. 

convictions,  331. 

judgment,  evidence  by  way  of  inducement,  332. 

special  verdict,  stating   a  pedigree,    whether   evidence 

between  third  persons,  328. 
verdict  in  action  for  negligence  of  servant,  is   evidence 
in  action  by  the  master  against  the  servant,  326. 
2    considered  with  reference  to  the  subject-matter,  333. 

verdict  in  trover,  a  bar  to  an  action  for  money    had  and 

received,  333. 
in  trespass,  bar  in  trover,  333. 
in  debt,  b.ir  in  assumpsit,  333. 
in  trespass,  estoppel  as  to  what,  335. 
in  ejectment,  proves  nothing  beyond  the  day  of  demise, 
336. 
criterion  for  determining  whether  the  cause    of  action    the  same, 
333. 


691 


(392  INDEX  TO  VOL.  I. 

VERDICT— conhnued. 

if  any  evidence  at  all  given  on    particular  count,  the    verdict  and 

judgment  will  be  a  bar,  834. 
where  plaintifTin  first  action  failed  from  defect  of  pleading,  334. 

or  gave  no  evidence  of  the  demand,  334. 
verdict  final  only  as  to  its  proper  purpose,  334,  335. 
in  action  for  nuisance  not  conclusive  as  to  the  right,  334. 
in  ejectment,  not    conclusive,  as  to  title   in   another    ejectment, 

336. 
in  criminal  case,  when  evidence  in  civil,  336. 
evidence  that  the  verdict  was  entered  by  mistake,  not  admissible, 

316. 
in  debt  on  award,  and  "  no  such  award''  pleaded,  the  jury   can- 
not find  the  award  void  by  matter  dehors,  170. 
proof  of  verdict,  3S9. 

nisi  prius  record  with  postea,  evidence  of  trial,    SS9. 

proof  of  verdict  and  damages,  389. 
on  issue  out  of  Chancery,  decree  to  be  shown,  389. 

VESTRY-BOOK 

of  parish,  when  evidence,  414. 

containing  evidence  of  election,  414. 

entry  in,  as  to  right  to  a  pew,  414.     See  tit.  Parish. 

VICAR, 

booksof  deceased,  when  evidence,  260. 
proper  custody  of,  260.  (3.) 

VICARAGE, 

endowment  of,  when  presumed,  162. 

secondary  evidence  of,  459. 

VICE-CONSUL, 

certificate  of,  abroad,  381. 

VIDELICET, 

effect  of,  iti  pleading,  213,  n. 

VISITATION-BOOKS, 

of  heralds,  421. 

VISITOR, 

eentence  of,  conclusive,  356. 

VOIR  DIRE, 

examination  on,  as  to  interest,  131. 

form  of  swearing,  22. 

religious  opinions,  24. 

contents  of  deeds  and  writings,  132. 
objection,  arising  on,  may  be  removed  on  the  same,  132. 

how  removed  by  independent  proof,  133. 


INDEX  TO  VOL.  I. 


693 


w 


WAGER, 


WAGES, 


WAB, 


in  action  for,  one  who  lays  a  similar  wager  is  competent,  137. 
on  event  of  prosecution,  will  not  make  witness  incompetent,  139. 

agreement  for,  when  not  necessary  to    be  stamped,  530. 
in  action  for,  by  seamen,  the  contract  to  be  produced  by  the  defend- 
ant, 437. 

this  rule  confined  to  voyages  on  board  of  British  ships,  437,  n. 
the  captain  must  produce  the  articles  without  notice,  if  he 
has  any  objection  upon  them,  443. 

articles  of,  how  proved,  407. 

proclamations  for  reprisals  in  Gazette,  evidence  of,  407. 
notoriety  of,  sufficient  proof,  407,  n. 

declaration  of,  by  foreign  government,  evidence  of  commencement  of 
hostilities,  407,  n. 

WARRANT 

of  commissioners  of  bankrupt  to  bring  witness  before  them,  13. 

WARRANTY, 

action  in  tort  for  breach  of  warranty  of  goods — plaintiff  need  not 
prove  that  defendant  knew  the  goods  to  be  in  an  unfit  state,  though 
so  averred,  207. 

the  substantive  parts  of  the  warranty  to  be  stated  and  proved, 
208,  209. 
of  horse,  contained  in  receipt  for  the  price,  need  not  be  stamped,  528 

WASTE, 

action  for,  201. 

averment  of,  requisite  proof  of,  201. 

WAY.     See  tit.  Road. 

public  right  of, 

hearsay  evidence  of,  248,  249. 

verdict,  evidence,  though  between  other  parties,  328. 
private  right  of, 

hearsay,  whether  evidence  of,  328. 
usage,  evidence  of,  163,  164. 

extent  of  right  limited  by  the  usage,  165. 
use  of  way  for  carriages,  evidence  of  a  grant  of  drift-way, 
165. 

WIFE.  See  tit.  Husband  and  Wife. 

answer  of  to  bill,  whether  evidence  against  herself  after  husband's 
death,  362. 


694  INDEX  TO  VOL.  I. 

WILL, 


of  personal  property, 

proof  of  in  ecclesiastical  court,  344,  397 
probate,  evidence  of,  344. 

leger-book  of  ecclesiiislical  court,  evidence  of  contents  of,  398. 
copy  of,  39S,  496. 

evidence  to  prove  relationship,  398,  496. 
of  real  property, 

requisites  of  by  statute  of  frauds,  494. 

of  copylioid,  requires  neither  attestation  nor  signing,  494,  n. 
subscribing  witness  to,  need  not  see    testator  sign,  499. 

witnesses  to,  may  subscribe  at  different  times,  499 
exemplification  of  will,  not  evidence,  496. 
quality  of  witnesses,  494. 
single  witness,  sufficient  at  law,  496. 
rule  in  Chancery,  496. 
on  trial  of  issues,  497. 
person  convicted  of  infamous  crime,  not  good  witness,  494. 
witness  interested  under  will,  495. 

whether  competent  after  release,  495. 
legatee,  whether  competent  after  legacy  paid,  495. 
devise  to  witness  void,  495. 
husband  of  devisee,  not  competent,  496. 
creditor  may  attest  though  will  c!iarged  with  debt,  495. 
subscribing  witness  what  to  prove,  497. 

may  prove  will  forged,  43. 
executor,  good  attesting  witness,  when,  495. 
signing,  497. 

in  any  part  of  a  will,  497. 
of  part,  intending  to  sign  the  whole,  497. 
by  mark,  497. 
by  stamped  name,  497. 
by  seal,  insulFicient,  497. 
when  testator  is  blind,  498. 
attestation,  499. 

witnesses  need  not  e.'jpress  that  they  subscribed    in  the 

testator's  presence,  499. 
on  trial  of  issue  from  chancery,  all  the  witnesses  must 

be  examined,  497. 
witnesses  need  not  see  testator  sign,  499. 

if  he  acknowledges  his  will,  sufficient,  499. 
need  not  all  attest  at  the  same  time,  499. 
nor  attest  every  page,  500. 

whole  will  must  be  present,  500. 
what  is  evidence  of  the  whole  will  being 
present,  500. 


INDEX  TO  VOL.  I. 

WILL — continved. 

attestation  by  mark,  50O. 

in  presence  of  testator,  500. 

if  the  testator  migiit  see  the  attestation,  suffi- 
cient, 500. 
execution,    how   proved   when   subscribing   witness  dead,  insane,  or 

abroad,  501,  502. 
where  attestation  does    not  express  that  witnesses    signed  in  presence 
of  testator,  501. 

when  hand-writing  cannot  be  proved,   501. 
witness  denying   execution,  502. 
will  30  years  old,  whether  to  be  proved,  503. 

will  impeached  for  fraud — evidence  is  admissible  of  what  testator  said 
at  the  lime,  552. 

attesting  vvitne.ss  may  impeach,  308,  502. 

if  impeached  by  witness,   who  imputes  fraud  to  the   other  sub- 
scribing  witnesses  deceased,  evidence  of  their  good  character 
is  admissible,  308,  502. 
ambiguity  in  will,  when  explained  by  parol  evidence,  532. 
latent  ambiguity,  may  be  explained,  532. 
devise  to  two  of  the  same  name,  532. 
mistake  in  devisee's   name,  532. 

in  description  of  property,  531,533,    534. 
in  name  of  fund,  533. 
patent  ambiguity,  not  explained  by    arol,  538. 
uncertainty  in  devise,  538. 
omission  of  name  in  will,  539. 
surname  without  christian  name,  539. 
initial  of  surnanie  only,  539. 
trust  in  will  raised  by  parol  evidence,  577. 

WINTON.     See  til.   Hue  and  Cry. 


695 


WITNESS.     See  Compensation. 

absence  of,  a  ground  for  putting  oft'  trial,  16. 

abroad,  or  going  abroad,  may  be  examined   on  interrogatories,  when, 
14. 

evidence  in  India  how  procured,  15. 
attendance  of,  to  give  evidence  at  trial,  2. 
attending,  free  frotn  arrest,  4. 
mode  of  procuring  attendance,  3. 
in  civil  cases,  3. 
in  criminal  cases,  8. 
before  commissioners  of  bankrupt,  13. 

compellable  to  attend,  13, 
before  conmiissioners  of  inclosure,  14. 
before  court-martial,  14. 
before  magistrates,  14. 
attesting  witness  to  deed,  or  other  writing,  464.     See  tit.  Deed. 


696  INDEX  TO  VOL.  I. 

WITNESS— cotitinued. 

invalidating  instrument,  competency  of,  43. 
proof  of  execution  by,  464. 
may  prove  it  forged,  41,  308. 

cannot  be  objected  to  as  interested  by  one,  virho  asked  him  to  at- 
test, knowing  his  situation,  466. 
when  not  produceable,  how  the  deed    ia    to  be  proved,  146.  466, 

473,  474,  (2.) 
what  excuses  the  absence  of  such  witness,  473,  473,  n. 
attesting  witness  to  will,  496. 
proof  of  will  by,  496. 
quality  of  attesting  witness,  494. 

single  witness,  sufficient  at   law,  to  prove  the  execution,  496. 
rule  in  Chancery,  496.  _ 

on  trial  of    issues,  497. 
convicted  of  infamous  crime,  not  good  witness,  494. 
witness  interested  under  will,   495. 
devise  to  witness,  void,  495. 
husband  of  devisee,  not  competent,  496. 
creditor  may  attest,  though  will  charged  with  debt,  495. 
witness  may  prove  will  forged,  43,  308,  502. 
witness  need  not   see  testator  sign,  -499. 

if  he  acknowledges  liis   will,  sufficient,  499. 
all  witnesses  need  not  attest  at  the  same  time,  499. 
nor  attest  every  page,  500 

whole  will  must  be  present,  500. 
witnesses  must  sign  in  presence  of  testator,  500. 

if  the  witness  might  see  the  attestation,  sufficient,  500. 
witness  denying  or  impeaching  the  execution,  502. 
deposition  of  witness.     See  tit.  Deposition. 
incompetency  of  witness, 

1.  Want  of  understanding,  18. 

insane,  idiots,  lunatics,  IS. 

deaf  and  dumb,  how  to  give  evidence,  19. 

children,  when  competent,  19. 

2.  Want  of  religious  principle, 

general  rule,  20. 

atheists,  infidels,  incompetent,  21. 
heathens  competent,  when,  21. 
witness  for  prisoner  formerly,  not  sworn,  21 . 
Quakers  may  affirm,  in  civil  cases,  25. 
witness  not  known  to  be  a  Jew,  sworn  in  the  common  form 
— no  ground  for  new  trial,  24,  n. 

3.  Infamy  of  character,  27. 

witness,  when  incompetent   by  crime,  28. 
competency,  how  restored,  31. 


LNDEX  TO  VOL.  I.  697 

WmiESS— continued. 

acconiplicps  competent,  36      See  tit.  Accomplice. 

cross-examination,  as  to  character,  282,  291. 
4.  Interest  renders  witness   incompetent,  45. 
reason  of  the  rule,  45. 
objection,  when  to  be  made,  131. 

taken  on  voir  dire,  removed  on  voir  dire,  132. 
what  not  an  interest  to  disqualify,  47. 

witness  in  same  situation,  47. 

insurer  in  policy,  47. 

vendor  of  estate,  48. 

vendor  of  goods,  49. 

dormant  partner,  49. 

sub-tenant,  49. 

reversioner,  49. 

captain  of  ship,  49. 

person  speaking  to  his  own  insolvency,  49. 

party  injured,  in  prosecution,  50. 
in  case  of  perjury,  50. 
in  case  of  usury,  51. 

person  liable  to  information,  51. 
or  to  action,  51. 

bond  security  for  administrator,  52. 

executor — trustee,  52. 

person  believing  himself  interested,  53. 
what  is  such  an  interest,  as  to  disqualify,  55. 

1.  Where  the  verdict  may  be  evidence    for  or  against  a  witness, 
55. 
servant,  56. 
broker,  56. 
landlord,  56. 
commoners,  57. 

claiming  under  custom,  57,  58. 
claiming  by  prescription,  58. 
tenant  in  possession,  56. 
under-tenant,  64. 
person  discharging  his  debt,  63. 
2.  Liability  for  costs, 
bail,  59. 

person  depositing  money  in  lieu  of  bail,  63. 
sheriff's  officer,  59. 
prochein  a?ny,  59. 
partner,  59. 
drawer  of  bill,  61. 
payee  and  endorser,  61. 
agent,  62. 
co-obligor,  62. 

Vol.   I.  88 


698  INDEX  TO  VOL     I. 

WITNESS— continued. 

3.   Where  some  direct  benefit  from  the  event,  63 
residuiirj'  legatee,  63. 
person  for  whose  benefit  policy  eflected,  63. 
agreement  for  lease,  63. 
promise  to  pay  conditionally,  64 
party  lo  consolidation  rule,  64. 
devisee,  64. 

heir,  64-  \ 

remainder-man,  64. 
tenant  in  possession,  64. 
freeman,  65. 

(See  also  titles  of  the  several  actions,  in    Index,  for    other 
"^  examples.) 

interested  on  both  sides,  competent,  66. 
in  action  against   ship-owners,  the  captain  may  prove  re- 
ceipt of  money,  66. 

in  question  on  priority  of  demise,  lessor  competent,    66. 
in  action  by    endorsee    against    drawer,  acceptor,  may- 
prove  no  eflects  in  his  hands,  67. 
payee  of  bill  may  prove  endorsing  to  the  plaintiff  before 

the  bill  was  due,  67. 
in  action  by  payee  against  maker  of  note,  a  joint  maker 

may  prove  defendant's  signature,  67. 
co-obligor,  67. 

bill  of  e.xchange  drawn  as   in  partnership   firm, — either 
partner  may  prove  want  of  authority   in   the  drawer, 
in  action  by  payee  against  acceptor,  67. 
where  defendant  pleads  in  abatement,  that  he  promised 
jointly  with  A.  and  B  ,  A.  may  prove  that  the  defend- 
ant was  not  authorized  by  the  partners,  68. 
party  to  suit,  incompetent,  69.     See  tit.   Party. 
though  mere  trustee,  69. 

corporate   body,  liable    to  costs    individually,    incompetent, 
though  indemnified,  69. 
but  competent,  if  liable  only    incorporate  capacity, 
70. 
husband  or  wife  of  party  to  the  -suit  incompetent,  76. 

See  tit.  Husband  and  Wife. 
party  injured,  competent  in  criminal  prosecutions,  119. 

See  tit.  Prosecutor. 
exceptions  to  general  rule  on  the  subject  of  interest,  12.5. 
informers,  competent,  when,  125. 


INDEX  TO  VOL.  I.  (^99 

WITNESS— co«/i7i?ie(/. 

iuhabitants  of  county,   parish,  &c.,  when,  126. 
See  tit.  Inhabilant. 

persons  entitled  to  reward  on  conviction,  129. 
freemen,  when  competent,  71. 

agents,  servants,  fictors,  when  competent,  129.     See  tit.  Agent. 
interested  witness,  how  rendered  competent,  131. 

objection  raised  on  voir  dire,  removed  on  voir  dire,  132. 
by  release,  payment,  &c.,  133,  134,  135.     See  tit.  Release. 
member  of  corporation,  made  competent,  136. 

by  resignation  or  disfranchisement,  136. 
becoming  interested  after  making  deposition,  364. 
interested,  depositions  to  be  read  when  not  objected   to  on  cross- 
interrogatories,  365. 
release,  when  unnecessary,  136. 
examination  of  witness,  267. 
on  interrogatories,  14. 

of  prisoner  of  war,  5,  6. 
of  witness  resident  abroad,  14. 
resident  in  India,  15. 
going  abroad,  14. 
by  consent,  15. 
as  to  interest,  267. 
in  chief,  268. 
leading  questions,  rule  as  to,  268. 

in  cross-examination,  275. 
in  examination  in  chief,  268. 
to  contradict  another  witness,  269,  270. 
priviledged  from  answering,  when,  276. 

when  he  might  be  subject  to  penalties,  or  criminal  charce,  276. 
if  witness  answers  such  questions  in  an  examination,  his 
examination  is  evidence  against  him,  89. 
not,  if  only  subject  to  civil  suit,  or  debt,  277. 
when  the  question  might  subject  to  forfeiture,  278. 
when  it  might  degrade  his  character,  278. 
arguments  for  and  against,  279. 
whether  such  questions  legal,  282. 
not  allowed  to  answer,  vvlun,  284. 

as  to  information  given  to  government  or  the  police,  284,  285. 
as  to  official  communications,  287. 


700  INDEX  TO  VOL.  I. 

WITN  ESS— continued. 

examination  on  voir  diie,  132.     See  tit.  Voir  Dire. 

witness  may  be  examined  as  to  the  contents  of  writings,  132. 
if  he  produces  the  writing,  it  ought  to  be  read,  132. 
as  to  form  of  swearing  most  binding,  24. 
cross-examination  of  witness,  272. 
rule  as  to,  272. 
how  far  he  may  be  led,  275. 
not  to  collateral  irrelevant  facts,  272,  291. 

what  questions  are  irrelevant,  273. 
witness,  called  and  sworn,  but  not  examined,  may  be  cross-exam- 
ined, 274. 
rule  as  to  cross-examining  an  unwilling  witness,  269,  275. 
rule  as  to  leading  questions,  275 

rule  as   to  cross-examining,  preparatory  to  proof  of  contradictory 
statement,  293,  294. 
whether,  after  cross-examination,  a  party  may  recall  the  wit- 
ness to  prove  his  case,  and  put  leading  questions,  274. 
credit  of  witness,  how  impeached,  291. 

by  disproving  the  facts  stated  by  him,  291. 
by  proof  of  his  general  character,  291. 
not  by  evidence  of  particular  facts,  291. 
by  proof  of  contradictory  statements,  293. 
by  comparing  his  evidence  with  his  deposition,  310. 

rule  of  cross-examination  as  to  verbal  statements  of  wit- 
ness on  other  occasions,  293. 
rule  of  cross-eximination  as  to  written  statements,  296. 
re-examination  as  to  former  statements,  30-1. 
party  calling,  cannot  discredit  him,  by  evidence  of  his  gene- 
ral bad  character,  308. 

or  by  proof  of  contradictory  statements,  309 . 
but  may  disprove  facts,  309. 
credit  of  witness,  how  supported,  306. 

proof  of  general  good  character,  to  oppose  evidence  of  char- 
acter on  the  other  side,  308. 
pi  oof  that  he  affirmed  the  same  thing  on  former  occasions,  not 
admissible  in  reply,  307. 
number  of  witnesses  to  prove  a  fact,  150. 

in  trial  for  perjury,  151. 
in  treason,  152.     See  tit.  Treason. 
in  courts  of  equity,  154. 
in  ecclesiasticarcourts,  155. 
opinion  of  witness,  when  evidence,  290. 


INDEX  TO  VOL.  I.  701 

WITNESS— confwwetf. 

on  question  of  science  or  art,  290. 

of  medical  men,  ns  to  insanity,  cause  of  death,  &c.  290. 

in  matters  of  trade,  290. 

as  to  genuineness  of  hand-writing,  492. 

WORDS, 

action  for.     See  tit.  Defamation,  Libel. 

WORK  AND  LABOUR, 

presumptive  evidence  of  payment,  159. 

WORKMEN, 

when  competent  on  behalf  of  their  employer,    130. 

WRIT, 

return  of  sheriff  upon,  when  evidence  of  the  fact,  391. 
not  evidence  of  payment  to  judgment-creditor,  391. 
evidence  of  licence,  391. 
suing  out,  how  proved,  390. 

when  only  inducement,  390. 

when  the  gist  of  the  action,  390. 
fieri  facias,  without  proof  of  judgment,  evidence,  when,  390. 
proof  of  title  under  elegit,  390.     See  tit.  Elegit, 
ofhabeas  corpus  adtestificandum,^^^^  ^.^    Subpoena- 
of  subpana  ad  testificandum,  >  Witne&t 

duces  tecum.  ) 

WRIT  OF  ENQUIRY 

after  judgment  by   defiiult,  what  admitted,  186. 

in  demurrer,  what  admitted,  what  to  be  proved,  186. 


WRITING, 


public,  not  judicial,  403. 

inspection  of,  429.     See  tit.  Inspection. 

proof  of  entry  in  public  book,  424. 
private,  422. 

when  it  does  not  exclude  parol  evidence,  221. 

receipt,  220. 

terms  of  tenancy,  221. 

resolutions  at  a  meeting,  221. 

proposal,  221,  222. 

terms  of  sale  unsigned,  221. 

proof  of  written  instruments,  464. 
See  tit.  Deed. 
ancient  writing.     See  tit.  Rent-roUs,  Terrier,  &.c. 
proper  custody  of,  479,  480,  481. 
may  be  proved  by  comparison,  when,  490,  491. 
secondary  evidence  of,  452. 
hand-writing,  proof  of,  483. 

See  tit.  Hand-writing. 


702  INDEX  TO  VOL.   I. 

WRITING— co«<tnued. 

forgery  of,  how  proved,  224. 

Sec  til.  Forgery. 
los3  of  writing,  how  proved,  452,  454. 
parly  in  possession  of, — proof  of,  440. 
secondary  evidence  of,  457. 

of  jincient  writings,  459. 
duplicate  original  of,  445 
copy,  when  evidence,  446,  457. 
parol  evidence  of,  439,  457. 
notice  to  produce,  439.     See  tit.  JSTotice- 

writing  called    for  under  notice,  not  made  evidence,  unless  in- 
spected, 441. 
regular  time  for  producing,  441. 
process  for  compelling  production  of,  3,  436. 

party,  when  excused  from  producing,  436,  438. 
rule  of  court,  to  produce,  436. 
rule  for  inspecting  and  taking  copy,  437. 
judge's  order  for  producing  in  action  of  policy,  438. 


END     OF    VOLUME    I. 


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